RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  7 February 2008 
	DOCKET NUMBER:  AR20070013986 


	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. William D. Powers

Chairperson

Ms. Rose M. Lys

Member

Mr. Qawiy A. Sabree

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 as the result of friendly fire while serving in the Republic of Vietnam.  The applicant continues that until he recently read the Army Awards regulation, he was not previously aware that he was entitled to the Purple Heart for his wounds.

3.  The applicant provides copies of eleven documents extracted from his medical records as additional documentary evidence in support of this application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel does not request or state anything on behalf of the applicant in this case. 

2.  Counsel provides contact information in the form of a mailing address, telephone number and an e-mail address.

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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 24 September 1970 shows that he was inducted into the Army of the United States on 19 February 1969.  He completed basic and advanced individual training and was awarded the military occupational specialty of 11B (Light Weapons Infantryman).  The applicant also served in the military occupational specialty of 63C (Motor Sergeant).  The highest rank he achieved was sergeant/pay grade E-5.

3.  The applicant provides copies of eleven documents extracted from his medical records that show he received medical treatment for a wound he sustained on 4 November 1969 when a small piece of shrapnel penetrated his left knee.  These documents were rendered by various healthcare professionals at three different medical treatment facilities.  Eight of the documents are contemporaneous and were rendered beginning the date of the incident and continuing through 19 August 1970.  The remaining three documents were rendered in 1997 when the applicant was treated for a condition related to his injury.

4.  Block 31 (Foreign Service) of the applicant's DA Form 20 (Enlisted Qualification Record) for his period of service ending on 24 September 1970 shows he served in the Republic of Vietnam during the period 17 July 1969 through 24 September 1970.  Block 40 (Wounds) is blank.  Block 
41 (Awards and Decorations) does not show award of the Purple Heart.

5.  Block 38 (Record of Assignments) of the applicant's DA Form 20 does not show that he was ever in a patient status.

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

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

8.  Item 23 (Diagnoses) of DA Form 8-275-3 (Clinical Record Coversheet), dated 13 November 1969, contained in the applicant's record, in pertinent part, reads "EM (Enlisted Member) shot a M-79 Round in Swamp and caught a piece of frag [fragment] in knee, 1300 hrs, 4 NOV 69, 3 miles south of Camp Holloway, RVN [Republic of Vietnam]."

9.  Item 23 (Diagnoses) of DA Form 8-275-2 (Clinical Record Coversheet), dated 11 December 1969, contained in the applicant's record, in pertinent part, reads "Incurred o/a 1300 hrs, 4 NOV 69, patient shot a M-79 Round in Swamp and caught a piece of frag in knee, 3 miles south of Camp Holloway, RVN."

10.  Block 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 for the period ending 8 September 1969 does not show award of the Purple Heart.


11.  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.

12.  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.

13.  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.

14.  Review of the applicant's records indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

15.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in the Republic of Vietnam.  This document shows the unit, to which the applicant was assigned, was awarded of the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 11, dated 1973.

16.  Army Regulation 600-8-22 (Military Awards), in pertinent part, authorizes award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal.

17.  The applicant's records show he participated in four campaigns during his service in the Republic of Vietnam:  Vietnam Summer-Fall 1969, Vietnam Winter-Spring 1970, DA Sanctuary Counteroffensive, and Vietnam Counteroffensive Phase VII.


18.  Headquarters, 1st Aviation Brigade, APO San Francisco 96384, General Orders Number 662, dated 4 February 1970, awarded the applicant the Army Commendation Medal for meritorious achievement.  Headquarters, 1st Aviation Brigade, APO San Francisco 96384, General Orders Number 6050, dated 
8 July 1970, awarded the applicant the Army Commendation Medal (First Oak Leaf Cluster) for meritorious service.  

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 was wounded by a piece of 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 record shows that his injury was self-inflicted when he shot a M-79 Round in a swamp.

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.  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.

5.  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.

6.  General Orders awarded the applicant’s unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, the applicant is entitled to have his records corrected to show this foreign unit award.

7.  Records show the applicant participated in four campaigns during his service in the Republic of Vietnam.  Therefore, he is eligible for award of four bronze service stars to be affixed to his Vietnam Service Medal.

8.  General Orders awarded the applicant the Army Commendation Medal (First Oak Leaf Cluster).  Therefore, the applicant is entitled to have his records corrected to show this award.  

9.  Evidence shows that the applicant’s records contain administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_QAS_ __  _RML___  __WDP__  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show he was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation, four bronze service stars to be affixed to his already-awarded Vietnam Service Medal, and the Army Commendation Medal (First Oak Leaf Cluster).




__William D. Powers__
          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.