RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	   1 April 2008
	DOCKET NUMBER:  AR20070013984 


	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.


Ms. Catherine C. Mitrano

Director

Mr.  Rial D. Coleman

Analyst

The following members, a quorum, were present:


Mr. Lester Echols 

Chairperson

Mr. Joe R. Schroeder

Member

Mr. Larry W. Racster

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests award of the Purple Heart.

2.  The applicant states, in effect, that he should be awarded the Purple Heart based upon the fact that he was wounded during battle while serving in the Republic of Vietnam.  He continues that he sustained shrapnel wounds to his left leg, left arm, buttocks, back, and neck.  The applicant also states that he was medically evacuated to the 106th General Hospital located in Yokohama, Japan and then further back to the continental United States.  He concludes that he previously requested award of the Purple Heart in 1980 and received one in the mail in 1981, however, when he requested to have the Purple Heart added to his DD Form 214, he was informed that he had not been awarded the Purple Heart.

3.  The applicant indicates on his application that he provided Veterans Affairs claim for consideration with this application.  However, this evidence was not available for review with this case.

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 record shows that he served two separate periods of duty service.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period 21 December 1964 through 12 December 1967 shows that he held military occupational specialty (MOS) of 22F (Hercules Electronics Mechanic).  The form also shows that the applicant's character of service was honorable and he held the rank of specialist (SP4)/pay grade E-4 at the time he was separated and transferred to the United States Army Reserve Control Group (Reeinforcing).


3.  The record shows that the applicant was hospitalized during the period of 
12 December 1966 through 20 June 1967 to receive treatment for Guillain-Barre syndrome.

4.  The National Institute of Neurological Disorders (NIND) defines Guillain-Barre syndrome as a disorder in which the body's immune system attacks part of the peripheral nervous system.  This illness is called a syndrome rather than a disease because it is not clear that a specific disease-causing agent is involved.  There is no known cure for Guillain-Barre syndrome.  The recovery period may be as little as a few weeks or as long as a few years.  According to NIND statistics, about thirty percent of those with Guillain-Barre still have residual weakness after three years.

5.  The record shows that the applicant's second term of active duty service was during the period 12 March 1968 through 15 March 1971.  Upon completion of advanced individual training (AIT) he was awarded the military occupational specialty (MOS) of 12B (Combat Engineer).  His character of service was honorable and he held the rank of specialist (SP4)/pay grade E-4 at the time he was discharged.

6.  The applicant's record shows that he was awarded or authorized the following decorations, medals, badges, commendations, citations, and campaign ribbons:  Good Conduct Medal, National Defense Service Medal, Armed Forces Expeditionary Medal, Vietnam Service Medal with 2 Bronze Stars, Korea Defense Service Medal, Republic of Vietnam Campaign Medal, Valorous Unit Emblem, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Combat Infantryman Badge, First Class Missileman Badge, and the Sharpshooter Marksmanship Badge with Rifle Bar and Pistol Bar.

7.  Block 31 (Foreign Service) of the applicant's DA Form 20 (Enlisted Qualification Record) for his period of service ending on 15 March 1971 shows he served in the Republic of Vietnam during the period 19 January 
1969 through 26 May 1969.  Block 40 (Wounds) is blank.  Block 41 (Awards and Decorations) does not show award of the Purple Heart.

8.  Block 38 (Record of Assignments) of the applicant's DA Form 20 shows that he was a patient at the 106th General Hospital during the period 26 May 
1969 through 18 August 1969.

9.  The applicant's available military medical records do not show that he was hospitalized during the period 26 May 1969 through 18 August 1969. 

10.  Item 73 (Notes and Significant or Interval History) of Standard Form 
88 (Report of Medical Examination), dated 17 December 1970, which was completed in conjunction with the applicant's pre-separation medical examination shows the applicant signed a statement indicating that he was presently in good physical condition and that there had been no change in his health since his last physical.  Item 74 (Summary of Defects and Diagnoses) of this form, in pertinent part, shows that the applicant had a Tracheotomy scar [resulting from his treatment for Guillian-Barre syndrome] a one inch long scar on his left forearm, and a one inch long scar on his left thigh.  Item 74 also shows the applicant acquired hearing loss while serving in the Republic of Vietnam.

11.  Item 17 (Statement of Examinee's Present Health in Own Words) of Standard Form 89 (Report of Medical History), dated 11 March 1971, which was completed in conjunction with the applicant's pre-separation medical examination shows the applicant signed a statement indicating that he was presently in good physical condition.  This form contains no entry indicating the applicant had been injured during his period of service.  In item 33 of this form, the applicant indicated that he had not had any illness or injury other than those noted on the form.  The applicant signed the form acknowledging that he had reviewed the information on the form and that it was true and complete to the best of his knowledge.

12.  In item 39 (Physician's Summary and Elaboration of all pertinent Data) of Standard Form 89, dated 11 March 1971, the examining physician provided a synopsis of the applicant's medical history.  The summary contained several references to chronic conditions the applicant suffered do to the applicant's previously diagnosed conditions, it made no reference to him being injured.

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

14.  There are no orders in the available records which show the applicant was awarded the Purple Heart.

15.  Block 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 for the period ending 15 March 1971 does not show award of the Purple Heart.


14.  The applicant's record contains a letter from the Department of the Army, Office of the Adjutant General, Reserve Components Personnel and Administration Center, Saint Louis, Missouri, dated 3 July 1979, addressed to the applicant in response to his request for award of the Purple Heart.  The letter informed the applicant, in pertinent part, that since he was wounded accidentally, there is no authority whereby he may be entitled to the Purple Heart.  Attached to this letter, is a handwritten letter from the applicant in which he explains why he believes he is entitled to award of the Purple Heart.  In pertinent part, he stated, in effect, that he was a demolition specialist assigned to Bravo Company, 326th Engineer Battalion of the 101st Airborne Division.  He continued that at the time he was wounded, on or about 19 May 1969, he was supervising the emplacement of an explosive device for the purpose of clearing a path in the thick jungle undergrowth in order to provide the perimeter guards a clear path of escape in case they had to make a hasty retreat.  The applicant further continued that after installing the blasting cap into the charge, he turned and walked two steps prior to the charge exploding.  He also stated that he still has shrapnel in his left arm and other parts of his body from this incident.  The applicant further stated that he was evacuated to the 20th Surgical Hospital at Camp Evans in May 1969, transferred to a hospital in Da Nang, transferred to the 106th General Hospital in Yokohama, Japan, and finally transferred back to the United States.

15.  Army Regulation 600-8-22 (Military Awards) 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 by military medical personnel, and the medical treatment must have been made a matter of official record.  This regulation also provides that there is no statute of limitations on requests for award of the Purple Heart.

16.  Army Regulation 600-8-22 provides, in pertinent part, for award of the Purple Heart to individuals wounded or killed as a result of "friendly fire" in the "heat of battle" as long as the "friendly" projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.

17.  Army Regulation 600-8-22 provides, in pertinent part, that when contemplating an award of the Purple Heart, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.
The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite.  This regulation also provides that accidental and/or self-inflicted injuries or wounds, except when in the heat of battle, and not involving gross negligence, clearly do not qualify for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was wounded in the Republic of Vietnam and should be awarded the Purple Heart was carefully considered.

2.  Although the applicant contends that he was wounded by shrapnel while serving in the Republic of Vietnam, there is no corroborating evidence present in the available records which shows that the applicant was wounded as the result of a hostile action.  In fact, the only reference to him being injured is in his self-authored letter in which he states that his injury was the result of accidental discharge of an explosive device that he had personally armed.

3.  Army Regulation 600-8-22 provides that accidental and/or self-inflicted injuries or wounds, except when in the heat of battle, and not involving gross negligence, clearly do not qualify for award of the Purple Heart.

4.  The applicant authenticated two documents acknowledging that he was in fair to good health and that he had not had any illnesses or injuries other than those annotated on his pre-separation medical examination forms.

5.  There are no general orders that show the applicant was awarded the Purple Heart.  The applicant's name does not appear on the Vietnam Casualty Roster.

6.  In the absence of evidence that the applicant was wounded or injured as a result of hostile action, there is insufficient evidence upon which to base award of the Purple Heart in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JRS____  __LE___  _LMD___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.





	___Lester Echols __
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.