IN THE CASE OF: BOARD DATE: 23 May 2018 DOCKET NUMBER: AR20160011666 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 IN THE CASE OF: BOARD DATE: 23 May 2018 DOCKET NUMBER: AR20160011666 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. IN THE CASE OF: BOARD DATE: 23 May 2018 DOCKET NUMBER: AR20160011666 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 add the Purple Heart. 2. The applicant states he was injured on 10 August 1970, while operating a pay loader in the Black Virgin Mountains, Republic of Vietnam. He incurred injuries when he drove over a mine, which exploded while the unit was trying to establish a base camp. He further states he receives service-connected disability compensation for residuals resultant from this traumatic experience. 3. The applicant provides a self-authored statement. 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. A staff member of the ABCMR attempted to locate all of the applicant's military service records without success. Therefore, his complete military record is not available to the Board for review. This case is being considered using his DD Form 214. 3. His DD Form 214 shows the applicant enlisted in the Regular Army on 4 September 1968. 4. He served in the Republic of Vietnam from 3 April 1969 through 7 April 1971. 5. He was honorably released from active duty on 10 April 1971. His DD Form 214 does not show award of the Purple Heart. 6. A review of his available records did not yield general orders awarding him the Purple Heart. Additionally: a. His name is not shown on the Vietnam casualty roster as having sustained an injury as a result of hostile action. b. 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 U.S. Army Human Resources Command Military Awards Branch, failed to reveal Purple Heart orders for the applicant. 7. The applicant provides a self-authored statement in which he claims he was injured when he ran over a land mine while operating a pay loader on 10 August 1970. At the time, he was assigned to Company D, 588th Engineers in Tay Ninh, Republic of Vietnam. He further states he contacted the National Personnel Records Center and National Archives to obtain his military records to no avail. The second time he requested his records he received correspondence stating there were no records available, using the term, "missing, lost or displaced." Forty five years later, he receives service-connected disability for tinnitus, back injuries and post-traumatic stress disorder. He has had a total knee replacement and has a service-connected disability rating of 60 percent. REFERENCES: 1. Army Regulation 600-8-22 (Military Awards), paragraph 2-8, states the Purple Heart is awarded to members of the Armed Forces of the United States who, while serving under the authority with any of the U.S. Armed Services, have been wounded, were killed, or who have died or may hereafter die of wounds received as a result of hostile enemy action. The wound, injury, or death must have been the result of hostile enemy action, the wound or injury must have required treatment, not merely examination, by a medical officer or a medical professional, provided a medical officer include a statement in the Service member's medical record that wounds would have required treatment by a medical officer if one had been available. Additionally, treatment of the wound will be documented in the Service member's medical and/or health record. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant's request was carefully considered. 2. The applicant's complete military record was not available for the Board's review. However, there is a presumption of administrative regularity in the conduct of governmental affairs. This presumption can be applied to any review unless there is substantial evidence to rebut the presumption. In this instance, the "presumption of regularity" is based on Army Regulation 15-185 which states the ABCMR begins its consideration of each case with the presumption of administrative regularity and that the applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. The Purple Heart differs from all other decorations in that an individual is not "recommended" for this decoration; rather, the individual is entitled to it upon meeting specific criteria. Award of the Purple Heart requires a Soldier to have been injured or wounded by hostile action, the wound must have required treatment by medical personnel, and the medical treatment for wounds or injuries received in action must have been made a matter of official record. 4. In this case, the applicant's name is not shown on the Vietnam Casualty Roster, his medical records are not available for review with this case, and his available service record is void of orders that show he was awarded the Purple Heart. His record is also void of any official Army correspondence or Western Union telegrams and there is no conclusive evidence in his available service personnel record that shows he was wounded or injured as a result of hostile action or treated for such wounds. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160011666 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160011666 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2