IN THE CASE OF:	  

		BOARD DATE:	  28 October 2010

		DOCKET NUMBER:  AR20100012087 


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 for being injured in combat in Vietnam.

2.  The applicant states he sustained an injury when he was run over by a 5-ton dump truck while under fire in Khe Sanh, Vietnam, and was medically evacuated to Da Nang, Vietnam.  He was not awarded the Purple Heart for being injured in combat in Vietnam.

3.  The applicant did not provide any additional documentary evidence in support of his request.

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.  Evidence of record and background information:

	a.  On 19 February 1969, he enlisted in the Regular Army and was awarded military occupational specialty 12B (Combat Construction Specialist).

	b.  He served in the Republic of Vietnam with the Company A, 27th Engineer Battalion (Combat), from 9 August 1970 to 8 August 1971.

	c.  His complete medical records were not available for review; however, the record contains a DA Form 8-274 (Medical Condition - Physical Profile Record).  The physical profile indicates his right foot was injured in a crash.  The circumstances of the injury are not shown on this document.

	d.  He was released from active duty on 9 December 1971 and transferred to the U.S. Army Reserve (Control Group).  He completed 2 years, 9 months, and 21 days of active duty service.

	e.  His name is not listed on the Vietnam casualty roster.

	f.  Item 40 of his DA Form 20 (Enlisted Qualification Record) is blank.

3.  A review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant.

4.  Army Regulation 600-8-22 (Military Awards) provides for award of the Purple Heart to a member of the Armed Force or any civilian national of the United States who, while serving in any capacity with one of the U.S. Armed Services after 5 April 1917, was wounded or killed, or who died or may die after being wounded in any action against an enemy of the United States.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required medical treatment, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests award of the Purple Heart.

2.  His DA Form 20 does not list any injuries in item 40.  The Vietnam casualty roster does not contain the applicant's name.  There are no available medical records showing he was treated for a wound he received as a result of hostile action.  He has not provided substantiating evidence to support his contention that he was wounded as a result of enemy action.

3.  In view of the foregoing, his request should be denied.

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)                                         AR20100012087



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ABCMR Record of Proceedings (cont)                                         AR20100012087



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