IN THE CASE OF: BOARD DATE: 15 September 2009 DOCKET NUMBER: AR20090007289 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, in effect, that his record be corrected to show two awards of the Purple Heart (PH). 2. The applicant states, in effect, he was awarded two PHs while serving in the Republic of Vietnam (RVN), but he never received any paperwork. He claims the PHs were the result of a scorpion bite to his right thigh and a cut to his right knee resulting from a tripped branch with metal on it. 3. The applicant provides a self authored statement, DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and a sentencing letter from the Commanding Officer of the USS INCHON (LPH-12), 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’s record shows he enlisted in the Regular Army (RA) and entered active duty on 28 June 1971. He was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman). Specialist four (SP4) is the highest rank that he attained while serving on active duty. 3. The applicant's DA Form 20 (Enlisted Qualification Record), item 31 (Foreign Service) shows he served in the RVN from 5 January to 28 June 1972 and item 40 (Wounds) is blank. The PH is also not included in the list of awards contained in Item 41 (Awards and Decorations). 4. The applicant's record is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty. The record also does not include any medical treatment records that indicate he was ever treated for a combat-related wound or injury while serving in the RVN. 5. On 27 June 1973, the applicant was honorably released from active duty (REFRAD) after completing a total of 2 years of active military service. The applicant’s DD Form 214, Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) does not show award of the PH. 6. The applicant provides a sentencing letter from the Commanding Officer of the USS INCHON (LPH-12), dated 7 April 1980, which indicates the applicant was a seaman recruit in the United States Navy and he would be confined at the Naval Correctional Facility, Norfolk, Virginia, pending appellate review of his case. This letter also shows the applicant was entitled to two awards of the PH. The records used to verify his entitlement to the PHs are not listed or identified in the letter. 7. During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster. There is no entry pertaining to the applicant on this list of RVN casualties. 8. Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy. Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH. It states, in pertinent part, that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that the wound required treatment by medical personnel, and a record of this medical treatment must have been made a matter of official record. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention that he was awarded two PHs while serving in the RVN was carefully considered. However, there is insufficient evidence to support this claim. 2. By regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that the wound required treatment by medical personnel, and a record of this medical treatment must have been made a matter of official record. In this case, the evidence of record fails to corroborate the applicant's claim that he was wounded twice in action in the RVN. 3. Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action. Further, there are no orders or other documents on file in his record that indicate he was ever recommended for or awarded the PH by proper authority or that he ever pursued award of the PH while he was on active duty. 4. Finally, the applicant's name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties. Therefore, absent any evidence of record confirming the wound for which the applicant was treated was received as a result of enemy action, or that he was ever recommended for or awarded the PH by proper authority while serving on active duty. Absent any evidence of record to corroborate the awards information contained in the Navy commander’s letter that was provided by the applicant the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case. 5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 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) AR20090007289 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090007289 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1