RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 April 2008
	DOCKET NUMBER:  AR20070018181 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Eric N. Anderson

Chairperson

Mr. Peter B. Fisher

Member

Mr. Jeffrey C. Redmann

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 he was located in Bac Lieu, Republic of Vietnam [south of Saigon, in the Mekong Delta near Soc Trang and Can Tho].  Sometime in June/July 1967, his small compound received 75mm recoilless rifle fire.  While running to a bunker, he fell into a "hot shell crater and received lacerations on [his] legs from shrapnel in [the] crater."  He states a medical doctor told him he could receive the Purple Heart, but he refused.

3.  The applicant did not provide any additional documentary evidence in support of his application. 

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 that he was commissioned as a 2nd lieutenant (2LT) in the U.S. Army Reserve (USAR) on 6 January 1966 and was ordered to active duty from the USAR on 9 July 1966.   During this period of active duty, he served in the Republic of Vietnam from 6 December 1966 to 28 November 1967 and was assigned to the 525th Military Intelligence Group.  He was honorably relieved from active duty and transferred to the USAR Control Group (Annual Training) on 8 July 1968. 


3.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded the Bronze Star Medal, the National Defense Service Medal, the Parachutist Badge, the Republic of Vietnam Campaign Medal, the Vietnam Service Medal with bronze service star, and the [Republic of Vietnam] Gallantry Cross with Bronze Star. Item 24 does not show award of the Purple Heart.

4.  There are no general orders in the applicant's records that show award of the Purple Heart.  A search of ADCARS – the Awards and Decorations Computer-Assisted Retrieval System maintained by the US Army Human Resources Command of General Orders issued between 1965 and 1973 for the Vietnam era – does not show any orders awarding the Purple Heart, nor an order for award of the Bronze Star Medal.

5.  Item 10 (Assignment Limitations) of the applicant's DA Form 66 (Officer Qualification Record) shows a blank entry.

6.  The applicant's name is not listed on the Republic of Vietnam Casualty Roster.

7.  The applicant's Standard Form (SF) 600 (Chronological Record of Medical Care) reflects the following entry for 3 January 1967, "Pt. [patient] fell while running for bunker during mortar attack – sustaining abrasion of left knee."  The entry states he was treated by cleansing the injury with phisohex and giving him a tetanus shot.

8.  The Purple Heart was established by General George Washington at Newburgh, New York on 7 August 1782 during the Revolutionary War.  It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action.

9.  Army Regulation (AR) 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.  When contemplating an award of this decoration, the key issue to be considered is the degree to which the enemy caused the injury.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are:

	a.  Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action;

	b.  Injury caused by enemy placed mine or trap;

	c.  Injury caused by enemy released chemical, biological, or nuclear agent;

	d.  Injury caused by vehicle/aircraft accident resulting from enemy fire; or

	e.  Concussion injuries caused as a result of enemy generated explosions. 

10.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are:

	a.  Frostbite or trench foot injuries;

	b.  Heat stroke;

	c.  Food poisoning not caused by enemy agents;

	d.  Chemical, biological, or nuclear agents not released by the enemy;

	e.  Battle fatigue;

	f.  Disease not directly caused by enemy agents;

	g.  Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action;

	h.  Self-inflicted wounds, except when in the heat of battle and not involving gross negligence;


	i.  Post traumatic stress disorders; or

	j.  parachute jump injuries not caused by enemy action.

11.  AR 600-8-22 also provides that there are no time limitations for requests for award of the Purple Heart.

12.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided, in pertinent part, for award of the Purple Heart.  The regulation stated that authority to award the Purple Heart was delegated to hospital commanders.  Further, it directed that all personnel treated and released within 24 hours would be awarded the Purple Heart by the organization to which the individual was assigned.  Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam would be awarded the Purple Heart directly by the hospital commander rendering treatment.

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

14.  Item 24 (Decoration, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the Vietnam Service Medal.

15.  Appendix B of AR 600-8-22 shows that the applicant participated in Vietnam Counteroffensive, Phases II and III, campaigns during his tour of duty in the Republic of Vietnam.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to award of the Purple Heart.

2.  The applicant's uncorroborated statement provides he "fell into a hot crater" and lacerated his leg on pieces of shrapnel in the crater; there is immediacy between the enemy action and the injury.  The official medical record states he fell and skinned his knee while running for a bunker; there is no immediacy between the enemy action and the injury.  

3.  AR 600-8-22 provides that the key issue to be considered in awarding the Purple Heart is the degree to which the enemy caused the applicant's injury.  Unfortunately, in this case, the official record is at odds with the applicant's statement.  Given that the applicant did not receive orders awarding him the Purple Heart, his name is not on the Vietnam Casualty List, and nothing in his official records shows he was wounded, the preponderance of evidence weighs against awarding him the Purple Heart.

4.  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

__ena___  __pbf___  __jcr___  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 award of two bronze service stars to be affixed to his already-awarded Vietnam Service Medal.



						Eric N. Anderson
______________________
          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.