BOARD DATE: 18 August 2016 DOCKET NUMBER: AR20150012781 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ __x______ ___x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 18 August 2016 DOCKET NUMBER: AR20150012781 BOARD DETERMINATION/RECOMMENDATION: 1. 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. 2. The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices he made in the service to our Nation. The applicant and all Americans can be justifiably proud of his service in arms. __________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. BOARD DATE: 18 August 2016 DOCKET NUMBER: AR20150012781 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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his already-awarded Purple Heart. 2. The applicant states, in effect: * he sustained wounds in combat during his service in Vietnam * he was given the Purple Heart while he was in the hospital, but this award was not added to his DD Form 214 3. The applicant provides: * DD Form 214 for the period ending 29 July 1971 * 2nd page of a Standard Form (SF) 89 (Report of Medical History) * Department of Veterans Affairs (VA) Form 21-526 (Veteran's Application for Compensation or Pension), dated 6 August 1971 * VA Form 21-6798 (Disability Award), dated 15 December 1971 * VA Form 21-6796 (Rating Decision) dated 15 December 1971 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 30 July 1969. After completing initial training, he was awarded military occupational specialty 11E (Armor Crewman). 3. He served in Vietnam from 10 January 1970 to 20 June 1970. While in Vietnam, he was assigned to Headquarters and Headquarters Company, 2nd Battalion, 34th Armor Regiment, 25th Infantry Division. 4. He was honorably released from active duty on 29 July 1971. His DD Form 214 shows he completed creditable active service of 2 years. He was awarded or authorized the following: * National Defense Service Medal * Vietnam Service Medal with two bronze service stars * Republic of Vietnam Campaign Medal with Device (1960) 5. His DA Form 20 (Enlisted Qualification Record) shows the following: a. Item 38 (Record of Assignments) lists the applicant in a "Patient" status at the 249th General Hospital in Japan from on or about 11 June 1970 to on or about 19 June 1970. He is then shown as being in a "Patient" status in a medical holding company in Pennyslvania from on or about 24 June 1970 to on or about 6 August 1970 (a total of 57 days). b. Item 40 (Wounds) is blank. c. Item 41 (Awards and Decorations) does not show the Purple Heart. 6. His available service record contains: a. An official Army message showing his medical evacuation from the 249th General Hospital in Japan to a hospital located in the continental U.S (CONUS). The message provides no explanation of why he was hospitalized. b. General Orders (GO) Number 1764, dated 16 February 1970, issued by Headquarters, 25th Infantry Division, awarded him the Army Commendation Medal for meritorious achievement in connection with military operations against a hostile force during the period 21 January 1970 to 28 January 1970. c. GO Number 6645, dated 12 June 1970, issued by Headquarters, 25th Infantry Division, awarded him the Army Commendation Medal with "V" Device for heroism in connection with military operations against a hostile force on 24 May 1970. The citation describes how he exposed himself to enemy fire and placed suppressive fire on the aggressors. (There is no indication as to whether or not he was wounded in this encounter). d. His records are otherwise void of any GO showing the award of a Purple Heart. e. SF 89, dated 2 June 1971. Item 5 (Purpose of Examination) states "Separation." On page 2, item 33 (Have you ever had any illness or injury other than those already noted) shows the "Yes" block has been checked. In the remarks, it indicates the applicant was wounded in Vietnam. 7. His name is not on the Vietnam casualty listing. This is a listing of Vietnam-era casualties commonly used to verify entitlement to award of the Purple Heart. 8. A review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart. 9. The applicant provides documents from VA showing he was awarded a service-connected disability for injuries resulting from what is shown as being a shell-fragment wound to the spleen and left kidney. REFERENCES: Army Regulation 600-8-22 (Military Awards) provides the Purple Heart is awarded for a wound or injury sustained as a result of hostile action. Substantiating evidence must be provided to verify that the wound or injury was the result of hostile action, the wound or injury must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record. a. A wound is defined as any injury to any part of the body from an outside force or agent. A physical lesion is not required. However, the wound for which the award is made must have required treatment, not merely examination by a medical officer or physician. Additionally, treatment of the wound will be documented in the Service member's medical or health record. b. Examples of enemy-related injuries that clearly justify award of the Purple Heart include injury by an enemy bullet or shrapnel, enemy-placed trap or mine, and concussion injuries caused by enemy-generated explosions. DISCUSSION: 1. The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify the injury/wound was incurred, that it resulted from hostile action, it required treatment by medical personnel, and the medical treatment was made a matter of official record. a. The first criterion requires it be established a wound or injury was incurred. The second criterion stipulates there must be evidence the wound or injury resulted from hostile action. On these two points, neither the record, nor the evidence offered by the applicant are sufficient to fulfill these criteria. (1) The evidence of record does support that something occurred requiring medical evacuation and treatment, first to a General Hospital in Japan, then a medical facility in CONUS. It also suggests the medical condition, whatever it may have been, was serious enough to require hospitalization for about 57 days. (2) That evidence of record, however, does not give any details as to the nature of the wound(s) or injury(ies). * typical verification sources, such as the Vietnam Casualty Roster, the ADCARS database, and the applicant's DA Form 20, are void of any references to wounds or injuries * primary sources, such as official reports made at the time or medical treatment reports specifying the source and nature of the wound(s) or injury(ies), are missing from the applicant's available records b. In support of his request for the award of the Purple Heart, the applicant provides VA documentation showing he was given a service-connected disability for injuries listed as being the result of a shell fragment. Additionally, he offers an extract from his Report of Medical History, which he would have completed as part of his separation physical. This form states he was wounded in Vietnam. These documents, while informative, are are neither primary sources of information (as cited above) nor do they explicitly confirm the wound(s) or injury(ies) resulted from hostile action. 2. It is clear the applicant served with distinction and heroism, as shown by his award of the Army Commendation Medal with "V" Device. The issue is not the applicant's sincerity. Rather, it is the absence of documentation confirming the cause of his wound, which is a key element in determining eligibility for award of the Purple Heart. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012781 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012781 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2