PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 7 November 2002
         DOCKET NUMBER: AR2002077901


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. Thomas B. Redfern, III		Member
Mr. Donald P. Hupman, Jr.		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that he be awarded a Purple Heart for a wound received in Vietnam on 5 February 1969.

3. The applicant states, in VA (Veterans Administration) Form 21-4138, Statement in Support of Claim, dated 26 July 2002, "I am asking again my request to be awarded a Purple Heart be granted due to wounds received while serving my country in Vietnam. In the past the reason I was not awarded a Purple Heart, it was not attributed to some action by an armed enemy. I was wounded by an American but still I was wounded serving my country. The wound came not of my fault. I am asking again for a favorable reply."

4. The applicant submitted a copy of a VA Form 21-4138, Statement in Support of Claim, a copy of a self-authored letter dated 19 January 1993, and a map of South Vietnam, which shows the location of American military units during the Vietnam War, to support his contention.

5. The applicant’s military records show that the applicant enlisted in the Army for a period of three years on 17 October 1966. The applicant's records were lost and he was released from active duty on reconstructed records.

6. According to these records, on 2 June 1970, the applicant was honorably released from active duty at the expiration of his term of service and was transferred to the US Army Reserve Control Group (Reinforcement) in the rank and pay grade of Private First Class, E-3.

7. On the date of his release from active duty, the applicant had 3 years creditable active Federal service and a total of 229 days lost due to absence without leave and confinement.

8. Block 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214, shows he was awarded the following: "National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal w/device (1960), Expert (Rifle)." Block 24 of the DD Form 214 does not include the Purple Heart among the listed awards and decorations. The Board noted that the applicant signed his DD Form 214 on his release from active duty date attesting to the accuracy of the information recorded thereon.

9. The applicant served in Vietnam from June 1968 until March 1969. According to a copy of a reply, dated 23 April 1969, made to a Member of Congress (MC), so that he could reply to the applicant's mother about his [the applicant's] health, welfare, and location, following hospitalization and treatment for what was termed by medical personnel as, "non-serious wounds," the applicant was returned to duty and reassigned to the Continental United States on 19 March 1969 from the 249^th General Hospital in Japan.
10. There is an entry in Item 40 (Wounds), of the applicant's DA Form 20, Enlisted Qualification Record, as follows: "Moderate fragment wounds/1 Feb 69."

11. Item 41 (Awards and Decorations), on his DA Form 20, is also void of an entry showing entitlement to the Purple Heart.

12. There were no orders in the applicant's service personnel records awarding him the Purple Heart.

13. The applicant's name does not appear on the Vietnam Casualty List.

14. As indicated in his positional statement, the applicant has in the past, through various avenues, not this Board, tried to secure award of the Purple Heart for himself.

15. In a 15 December 1972 letter to a MC, the applicant wrote asking that the Purple Heart be awarded him, "I received multiple fragment wounds to my left cheek, left arm, abdomen, left knee and right thigh, which occurred from a grenade which was thrown by another G.I. which was in the same outfit I was in."

16. In his reply to the applicant, the MC wrote, "The Purple Heart is awarded to those persons who were wounded or injured as a direct result of hostile action of an enemy of the United States. The incident in which (the applicant) received his injuries may not be considered qualifying for such award because it was not caused by an enemy force."

17. In the self-authored letter dated 19 January 1993, which the applicant sent to The President and two United States Senators, the applicant describes the events leading to his being wounded. He writes that there were about 6 or 7 men in a tent when one man said he was going to send his son a war souvenir, "a grenade." He was told that the grenade would blow up in the mail so he took the grenade apart and poured out the powder. That is when he left and started back to his own tent. Then, someone yelled, "Grenade!" Everyone took off running, including himself. When he stopped and looked down, there it was, "the grenade." He froze and it went off, and this resulted in his being injured. He continued his letter by relating the events of his medical evacuation from the Republic of Vietnam and his feeling about being entitled to award of the Purple Heart.

18. On 5 August 1993, the Chief, Special Actions Division, Veterans Services Directorate, replied to these Senators that,

"Since 1932, when the Purple Heart was revived by the War Department, it has been Army policy that it would only be awarded in cases where the soldier suffered injuries that could be directly attributed to some action by an armed enemy. For example, soldiers who are wounded by shrapnel from an enemy grenade or gunshot wounds from enemy small weapons fire, clearly are eligible for the Purple Heart.

Conversely, soldiers who are accidentally injured while running to bunkers or taking similar actions to avoid exposure to enemy fire, or who are accidentally killed or injured by fire from U.S. or allied forces while not engaged in combat, are not eligible for the Purple Heart. Also, soldiers who die or suffer severe injuries in accidental aircraft and ground vehicle crashes in a combat zone are not eligible for the Purple Heart. In these situations, soldiers were killed or wounded accidentally, and not as a result of direct enemy action.

Although unfortunate accidents inevitably occur in a combat zone, the Army cannot award the Purple Heart to (the applicant) for his accidental injury. To do so would not only misrepresent the intent of the award, but also dilute the exacting criteria for which the Purple Heart has been approved in the past."

19. On 5 August 1993, the Deputy Commander, US Army Reserve Personnel Center, sent a reply to the applicant on behalf of The President wherein he states:

         "The Department of the Army policy provides that the Purple Heart be awarded in cases where soldiers suffer injuries that are directly attributed to some action by an armed enemy. Soldiers who are accidentally inured while running to bunkers or taking similar actions to avoid exposure to enemy fire, or who are accidentally killed or injured by fire from U.S. or allied forces while not engaged in combat, are not eligible for the Purple Heart.

Although unfortunate accidents inevitably occur in a combat zone, such as your injury, we cannot award the Purple Heart for an accidental injury. To do so would not only misrepresent the intent of the award, but also dilute the exacting criteria for which the Purple Heart has been approved in the past."

20. Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained 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, and the medical treatment must have been made a matter of official record.

21. The above regulation states, in paragraph 2-8a.(3), that the Purple Heart will be awarded, to any member of the Armed Forces who has been wounded, "While serving with friendly forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party." The eligibility criterion continues by adding in paragraph 2-8b.(6)(b). "Individuals wounded or killed as a result of 'friendly fire' in the 'heat of battle' will be awarded the Purple Heart as log as the 'friendly' projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment."

22. This same regulation, authorizes award of a bronze service star, based on qualifying service, for each campaign listed in its Appendix B. It further states that the authorized bronze service stars will be worn, in this case, on the Vietnam Service Medal.

23. The evidence of record shows that the applicant participated in the following four campaigns during his tour of duty in the Republic of Vietnam: the Vietnam Counteroffensive, Phase IV, which extended from 2 April 1968 through 30 June 1968; Vietnam Counteroffensive, Phase V, which extended from 1 July 1968 through 1 November 1968; the Vietnam Counteroffensive, Phase VI, which extended from 2 November 1968 through 22 February 1969; and the Tet 69 Counteroffensive, 1969, which extended from 23 February 1969 through 8 June 1969.

24. DA Pamphlet 672-3, Unit Citation and Campaign Participation Credit Register, shows that the unit to which the applicant was assigned during his tour of duty in the RVN, Headquarters and Headquarters Detachment, 1^st Logistical Command, was cited for award of the Meritorious Unit Commendation, for the period from 15 April 1968 through 30 April 1970 by Department of the Army General Order 19, dated 1974. The applicant's unit also received the Republic of Vietnam Gallantry Cross with Palm, Unit Citation. This award was announced in Department of the Army General Orders Number 8, dated 1974.

25. Army Regulation 600-8-22, in pertinent part, sets forth requirements for award of basic marksmanship qualification badge. The qualification badge is awarded to indicate the degree in which an individual has qualified in a prescribed record course, and an appropriate bar is furnished to denote each weapon with which the individual has qualified. The qualification badges are in three classes: Expert, Sharpshooter, and Marksman.

26. Army Regulation 635-5 prescribes policies and procedures regarding separation documents. Paragraph 2-4 provides specific instruction on the completing of the DD Form 214, and paragraph 2-4h(13) applies to the completion of block 24 of the DD Form 214. This paragraph specifies that awards and decorations for all periods of service will be listed in priority order as specified in Army Regulation 600-8-22. Each entry will be verified by the soldier's records and abbreviations are not to be used.

27. The above regulation, in paragraph 2-4h(21) specifies that a soldier's signature indicates that he has reviewed the form and accepts the information as being correct to the best of their knowledge.

CONCLUSIONS:

1. To be awarded the Purple Heart, the applicant would have to show that he was wounded and that: (1) the wound was the result of hostile action; (2) the wound required medical treatment; and (3) the medical treatment was made a matter of official record. The evidence of record shows that he was injured, the injury required medical treatment, and it was made a matter of official record; however, the Vietnam Casualty List does not show that the applicant was wounded in action against a hostile force.

2. The applicant was injured while in what was known as a, "base camp" and not as a result of hostile action. The grenade that caused the applicants injuries was not, "released with the full intent of inflicting damage or destroying enemy troops or equipment."

3. The events that the applicant describes do not meet the regulatory criterion for "friendly fire." The applicant was not injured by "friendly fire" in the "heat of battle."

4. The applicant has been advised in the past by other sources that he is not eligible for award of the Purple Heart because, even though wounded, the wounds that he sustained did not meet the eligibility criteria of Army Regulation 600-8-22 which superseded Army Regulation 672-5-1, which was then in effect.

5. The applicant is not entitled to award of the Purple Heart, and is therefore not entitled to have it shown on his DD Form 214.

6. The evidence of record shows that the applicant participated in four campaigns during his tour of duty in the Republic of Vietnam. The applicant is therefore entitled to be awarded four bronze service stars to be worn on his already awarded Vietnam Service Medal.

7. The applicant served in a unit during his tour of duty in the RVN that was cited for award of the Meritorious Unit Commendation and the Republic of Vietnam Gallantry Cross with Palm Unit Citation. He is therefore entitled to have his
DD Form 214 amended to add these unit awards.

8. The applicant qualified expert with the M-14 Rifle. An award showing this qualification is already shown on his DD Form 214; however, it is not entered in compliance with regulatory guidance. This entry should therefore be corrected.

9. In view of the foregoing, the applicant’s records should be corrected as recommended below.

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RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by:

         a. deleting the following from block 24, DD Form 214: "National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal w/device (1960), Expert (Rifle)."

         b. by awarding the applicant the Meritorious Unit Commendation, the Vietnam Gallantry Cross with Palm Unit Citation, and 4 bronze service stars to be worn on his already awarded Vietnam Service Medal,

c. by amending the applicant's DD Form 214, block 24, to read as follows: "National Defense Service Medal; Vietnam Service Medal with 4 bronze service stars; Republic of Vietnam Campaign Medal with 60 Device; Meritorious Unit Commendation; Republic of Vietnam Gallantry Cross with Palm, Unit Citation; Expert Marksmanship Qualification Badge with Rifle Bar."

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__rvo___ __tbr___ __dph___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  Raymond V. O'Connor, Jr.
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2002077901
SUFFIX
RECON
DATE BOARDED	20021107
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	107.0000
2.	107.0015
3.
4.
5.
6.