IN THE CASE OF: BOARD DATE: 4 June 2013 DOCKET NUMBER: AR20120020313 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 a DA Form 2173 (Statement of Medical Examination and Duty Status) to show he was injured by a "290M pan scaper" vice "290 wood scaper." 2. The applicant states item 15 (Details of Accident or History of Disease) of this DA Form 2173 on how he was injured is wrong. He needs to file for the Purple Heart. 3. The applicant provides two letters. 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 records show he was inducted into the Army of the United States on 23 September 1968 and he held military occupational specialty 62E (Heavy Construction Equipment Operator). He served in Vietnam from 4 June 1969 to 9 March 1970 while assigned to the 46th Engineer Battalion. 3. His records contain a DA Form 348 (Equipment Operator's Qualification Record) that shows on 25 February 1970, he qualified to operate a 290M tractor (wheeled) with scraper. 4. On 9 March 1970, he was injured by a military 290M tractor with scraper and fractured his right ankle. On 9 March 1970, he was assigned in a patient status to the 93rd Evacuation Hospital. On 13 March 1970, he was medically evacuated from Vietnam and assigned in a patient status to the 249th General Hospital, Japan. 5. His records contain a DA Form 2173 dated 17 March 1970 that shows in: * Item 15, he was injured by a "290 wood scaper" in "Swan Loc, Republic of Vietnam" at 1025 hours on 9 March 1970 * Item 30 (Details of the Accident), EM [Enlisted Member] was injured by 290 M., Xuan Loc RVN, 1025 hours, 9 March 1970" 6. Xuan Loc is a district in the former Republic of South Vietnam. “Swan Loc” appears to be a misspelling of Xuan Loc. 7. He was honorably released from active duty on 10 July 1970 by reason of early release for overseas returnee and transferred to the U.S. Army Reserve. He completed 1 year, 9 months, and 18 days of creditable active service. 8. Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action. Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record. DISCUSSION AND CONCLUSIONS: 1. The applicant was injured while in Xuan Loc, Vietnam by a 290M tractor with scraper while the DA Form 2173 contained in his records incorrectly shows item 15 this equipment as a "290 wood scaper" and the location as "Swan Loc." Therefore, it would be appropriate to correct this DA Form 2173 accordingly. 2. The applicant also stated he needed this correction to file for the Purple Heart. However, the DA Form 2173 does not indicate how he was injured (i.e., whether the injury was due to hostile action). Therefore, there is insufficient evidence on which to base award of the Purple Heart. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ___x____ ____x___ ____x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by publishing an appropriate document to amend item 15 of DA Form 2173, dated 17 March 1970, to show the entry "Enlisted Member was injured by a 290M tractor with scraper, Xuan Loc, Vietnam, 1025 hours, 9 March 1970." 2. The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to the Purple Heart. _______ _ _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) AR20120020313 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120020313 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1