BOARD DATE:	  17 February 2011

		DOCKET NUMBER:  AR20100021249 


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, the widow of the deceased former service member (FSM), requests that the FSM be posthumously awarded the Purple Heart.

2.  The applicant states the FSM had several surgeries to remove the shrapnel he received during his service in the Republic of Vietnam (RVN).

3.  The applicant provides a copy of the FSM's certificate of death.

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 DA Form 20 (Enlisted Qualification Record) and his service medical records are not available for review.

3.  The FSM's DD Forms 214 ending 23 May 1977 and 28 April 1981 indicate:

	a.  he entered active duty service on or about 2 October 1967, reenlisted on 24 May 1971, and was honorably discharged in the rank of sergeant/pay grade E-5 on 23 May 1977;

	b.  he again enlisted on 5 June 1980 in the rank of specialist four/pay grade E-4;

	c.  he was discharged on 28 April 1981 due to physical disability; and

	d.  he was not awarded the Purple Heart.

4.  Item 5 (Oversea Service) of the FSM's DA Form 2-1 (Personnel Qualification Record – Part II) shows he served in the RVN from 9 December 1969 to 8 December 1970 and again from 1 September 1971 to 12 April 1972.

5.  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 awarding the FSM the Purple Heart.

6.  The Vietnam casualty roster does not list the FSM's name.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the FSM should be awarded the Purple Heart because of shrapnel he received during his service in the RVN.

2.  The FSM's name is not listed on the Vietnam casualty roster.  Furthermore, there is no available evidence of record showing the FSM was injured or wounded as a result of enemy action.

3.  If the applicant has or is able to obtain documentary evidence showing the FSM was wounded as a result of enemy action and received medical treatment for such wounds, she may submit another application with such evidence for consideration.

4.  In view of the above, the applicant's 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 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)                                         AR20100021249



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ABCMR Record of Proceedings (cont)                                         AR20100021249



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