IN THE CASE OF:	  

	BOARD DATE:	  
	DOCKET NUMBER:  AR20080002466 


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, in effect, that he be awarded the Purple Heart.

2.  The applicant states, in effect, he should have been awarded the Purple Heart for wounds he received in action against a hostile enemy.  The applicant alleges he is drawing compensation from the Department of Veterans Affairs for these wounds; however, he has not received the Purple Heart which he is entitled to and deserves.

3.  The applicant provides a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty; a copy of an unsigned/undated request for personnel action, with five enclosures, in which a request was being made to award him the Purple Heart; several records related to his medical treatment; and physical profiles that were imposed with assignment limitations.  

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 were not available and were not submitted to the Board for its review.  On the date the applicant's request was being processed, his service records were charged out from the National Personnel Records Center; however, a sufficient number of records were available to respond to the applicant's request for award of the Purple Heart.

3.  Available documents show the applicant enlisted and served in the Regular Army for 21 years and 17 days.  On 28 February 1985, he was separated, in the rank and pay grade of Master Sergeant, E-8, for the purpose of retirement.

4.  The applicant served in Vietnam as evidenced by Vietnam-specific awards and decorations that are reflected in Item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), of his DD Form 214.  Item 13 shows he was awarded, among other awards, the Republic of Vietnam Campaign Medal; the Vietnam Service Medal; the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation; and the Republic of Vietnam Civil Actions Honor Medal, First Class, Unit Citation.

5.  On an unknown date, while the applicant was serving with the 29th Army Support Group, in Europe, he was recommended for award of the Purple Heart for his service in the Republic of Vietnam.  In Section IV (Remarks), of the DA Form 4187, Personnel Action, that was prepared, it states, in part, ". . . he was struck by incoming artillery shell while serving with 538th Land Clearing Co., 18th Engr Bde [Engineer Brigade]."  The personnel action form indicates that there were four enclosures attached:  a Standard Form 602, Clinical Record, Narrative Summary; a DA Form 3349, Physical Profile Record; a DA Form 8-275-2, Clinical Record Cover Sheet; and a DA Form 8-275-3, Clinical Record Cover Sheet.  The Personnel Action form does not bear a signature.  On an unsigned/undated Comment 2 to this action, in the upper right hand side of the paper, is a notation that states, "MSG W---'s copy."

6.  The DA Form 8-275-3, Clinical Record Cover Sheet, dated 15 June 1970, shows the applicant was diagnosed as having been struck by an artillery shell while at Hill #666, in the Republic of Vietnam, on 11 June 1970.  The clinical record shows the applicant was admitted to and provided primary medical 
treatment at the 17th Field Hospital in Vietnam on 11 June 1970.  He was medically evacuated to the 249th General Hospital in Japan on 15 June 1970.

7.  Item 23 (Diagnoses), of the DA Form 8-275-3, shows he had an open fracture in the right hamate, pisiform, 5th metacarpal, with marked swelling of the wrist and forearm.  The form further states the applicant was wounded at 2200 hours on 11 June 1970 when he was struck by an artillery shell while at Hill #666 in Vietnam.  The wound he sustained was cleaned and irrigated under general anesthesia.

8.  The DA Form 8-275-2 shows the applicant was admitted to the 249th General Hospital in Japan on 17 June 1970.  In Item 23 (Diagnoses), of the form, it shows the applicant sustained a, "wound, fragment, upper extremities, no artery or nerve involvement."  He was medically evacuated to the US Army Hospital, Fort Gordon, Georgia on 26 June 1970.

9.  A Standard Form 602, Narrative Summary, dated 10 August 1970, shows the applicant was admitted to the US Army Hospital, Fort Gordon, on 26 June 1970 and was discharged on 10 August 1970.  In the "History of Present Illness" section of the form, it states the applicant received a fragment wound of the right hand.

10.  A DA Form 8-275-2, with a disposition date of 10 August 1970, shows in Item 23 (Diagnoses), of the form, the applicant had sustained a, "wound, open, fragment, right upper extremity."  Item 23, of the DA Form 8-275-2, repeats the earlier diagnoses showing the applicant was struck by an artillery shell while at Hill #666 in Vietnam on 11 June 1970.

11.  The applicant provided a copy of a 3rd Endorsement to an action pertinent to the applicant, Subject:  Recommendation for Award, dated 20 October 1976.  The applicant was requested to furnish a detailed account of what happened and to provide names of eyewitnesses to Department of the Army, MILPERCEN [now the Army Human Resources Command], Attention:  DAPC-MSS-AI so that further consideration could be given to his request.  An additional request was made that all correspondence be returned to MILPERCEN.  There is no evidence these requests were responded to and that the action was completed.

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

13.  A search of the Awards and Decorations Computer-assisted Retrieval System (ADCARS) was made for orders awarding the applicant the Purple Heart.  No orders for this award were found in the ADCARS.

14.  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 by 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.

15.  Included as part of the Department of Defense Appropriations Act for fiscal year 1994 was an amendment to the rules governing award of the Purple Heart.  While the original rules established that the Purple Heart would be awarded to individuals killed or wounded as a result of hostile action the amendment enabled the Secretaries of each department to award the Purple Heart to members of the armed forces who were killed or wounded in action by weapon fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States.  This ruling, in effect, granted the service Secretaries the authority to award the Purple Heart to individuals directly engaged in armed conflict who were killed or wounded as a result of "friendly fire."

16.  Army Regulation 600-8-22 (Military Awards) 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.

DISCUSSION AND CONCLUSIONS:

1.  Despite the lack of an entry in the Vietnam Casualty List and the failure of the hospital medical evacuation system to award him the Purple Heart, the available evidence shows the applicant sustained a fragmentation wound to the right arm from an artillery shell while he was on Hill #666 in Vietnam on 11 June 1970.

2.  The wounds the applicant sustained on 11 June 1970 caused his medical evacuation from Vietnam.  On the day he was wounded, he was evacuated to the 17th Field Hospital.  He was later evacuated to the 249th General Hospital in Japan and was further evacuated to the US Army Hospital, Fort Gordon, Georgia.  The applicant's unit, the 18th Engineer Brigade, it is believed, apparently did not take any action to have the Purple Heart awarded to the applicant believing the hospital evacuation system had taken care of this function especially in view of the fact the applicant did not return to the unit following his hospitalization and return to duty.

3.  It appears the application of the awards regulation by MILPERCEN was too narrow.  Perhaps reviewing officials were looking for a phrase in documents they reviewed that specifically stated he was wounded "as a result of hostile enemy action."  These words are not found in the available documents; however, it 
should be noted there were only two types of artillery fire in Vietnam – incoming and outgoing, and in both events, the applicant would have qualified for award of the Purple Heart.  Therefore, based on the available evidence, the applicant is entitled to award of the Purple Heart and to have it added to his DD Form 214.

BOARD VOTE:

____x___  ____x___  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding the applicant the Purple Heart for wounds he sustained on 11 June 1970 while he served in the Republic of Vietnam and adding this award to his DD Form 214.



      __________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)                                         AR20080002466



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ABCMR Record of Proceedings (cont)                                         AR20080002466



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