BOARD DATE:	  31 August 2010

		DOCKET NUMBER:  AR20100009435 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests award of the Purple Heart.

2.  The applicant states he sustained a gunshot wound in February 1970 while serving as an infantryman in Vietnam.

3.  The applicant provides a Department of Veterans Affairs (VA) Rating Decision in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was inducted into the Army of the United States on 11 June 1969.  He served as a light weapons infantryman in Vietnam from 11 November 1969 until he was hospitalized on 1 March 1970.  He served as a still photographer in Vietnam from 17 May 1970 to 22 October 1970.  On 8 March 1971, he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining military service obligation.

3.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) does not show the Purple Heart as an authorized award.

4.  There are no orders for the Purple Heart in the applicant's service personnel records.  

5.  The applicant's DA Form 20 (Enlisted Qualification Record) does not show entitlement to the Purple Heart and item 40 (Wounds) is blank.  The applicant's name does not appear on the Vietnam casualty roster.

6.  On 5 February 1971, the applicant underwent a separation physical examination and was found qualified for separation.  His Standard Form 88 (Report of Medical Examination) states, in pertinent part, "gunshot wound to web of 2nd and 3rd toes, no residual."  However, there is no evidence of record which shows this gunshot wound was the result of hostile action in Vietnam.

7.  The applicant provided a VA Rating Decision, dated 22 September 2003, which states he was granted service connection for a gunshot wound to his left third toe (0 percent) and for nontender scars of his left third toe (0 percent).  This rating decision also states "service connection for gunshot wound, left third toe, has been established because shown in your service medical records."  Service medical records state that there were "no residuals."

8.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he sustained a gunshot wound in February 1970 while serving as an infantryman in Vietnam.

2.  The VA Rating Decision provided by the applicant was noted.  However, there is no evidence of record which shows the gunshot wound to his toe was the result of hostile action in Vietnam.

3.  There is no evidence of record which shows the applicant was wounded or injured as a result of hostile action in Vietnam.  There are no orders for the Purple Heart in the available records.  Regrettably, there is insufficient evidence on which to base award of the Purple Heart in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x____  ____x____  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________x_____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100009435



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR20100009435