IN THE CASE OF:	  

		BOARD DATE:	  
		DOCKET NUMBER:  AR20080005669 


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, award of the Purple Heart. 

2.  The applicant states, in effect, that he was wounded in the line of duty on 23 February 1969 and that orders were omitted from the Secretary of the Army Letter, dated 3 September 1969.  He states that orders were also omitted from his personnel records and he was informed that a copy would be attached; however, no Purple Heart was given.  He adds that he is now working with the Veterans Center for PTSD (Post Traumatic Stress Disorder) and his counselor believes that the Purple Heart award is necessary for closure. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a copy of a Letter of Appointment, dated 25 February 1969; a copy of letter from the Office of the Adjutant General (OTAG), Subject:  Line of Duty (LOD) Status, dated 3 September 1969; a copy of his DA Form 2173 (Statement of Medical Examination and Duty Status); a copy of DD Form 261 (Report of Investigation/ LOD and Misconduct Status); a copy of his DA Form 19-32 (Military Police [MP] Report); and two copies of DA Forms 2820 (Statement by Accused or Suspect Person); in support of his request.

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 he was inducted on 6 June 1968.  He was trained as a Light Weapons Infantryman, in military occupational specialty (MOS), 11B.  He was promoted to specialist four (SP4/E-4) effective 20 May 1969.  

3.  The applicant served in Vietnam from 5 November 1968 to 9 March 1969.  He served until he was honorably released from active duty on 24 July 1970. 

4.  The applicant’s DD Form 214 shows he was awarded the National Defense Service Medal; the Vietnam Service Medal; the Combat Infantryman Badge; and the Marksman Marksmanship Qualification Badge, with Rifle Bar.  His DD Form 214 does not show any additional awards.

5.  The applicant's DA Form 20 (Enlisted Qualification Record) does not show an entry in item 40 (Wounds) and the Purple Heart is also not shown as an authorized award in item 41 (Awards and Decorations). 

6.  The applicant's name does not appear on the Vietnam Casualty Roster for a wound received as a result of hostile action.

7.  The ADCARS (Awards and Decorations Computer Assisted Retrieval System) failed to show that orders were published awarding the applicant the Purple Heart.

8.  The applicant provided a copy of a Letter of Appointment, dated 25 February 1969, prepared by the Adjutant of Headquarters, 1st Battalion, 26th Infantry.  The letter appointed an investigating officer (IO) for the LOD determination pertaining to his shooting which ocurred on 23 February 1969.  The IO was informed that his investigation would be conducted in accordance with Army Regulation
600-10, chapter 5, and would be returned to headquarters no later than 11 March 1969. 


9.  On 2 March 1969, an MP Report was prepared.  The report indicated that an accidental shooting (alleged) had occurred on 23 February 1969.  A member of the applicant's command notified the desk sergeant that there was a man with a gunshot wound of the right foot in the emergency room of the 1st Medical Battalion.  The investigation revealed that the applicant had been shot with a .45 Caliber Pistol, assigned to another Soldier outside of the Enlisted Members' (EM) Club.  The applicant was released to his own custody. The report indicated that the investigation would continue by CID (Criminal Investigations Division) with further reports to follow.  

10.  On 3 March 1969, a Report of Investigation/LOD and Misconduct Status was prepared.  The IO indicated that the applicant was shot in the right foot by another Soldier attempting to clear a .45 Caliber Pistol.  They had all been drinking and the Soldier thought it was best to clear the weapon.  In the process of clearing the .45 Caliber Pistol it discharged, wounding the applicant in the right foot.  

11.  The applicant provided copies of two DA Forms 2820 which were prepared on 8 March 1969 and described the events that occurred on 23 February 1969, regarding the accidental shooting.

12.  On 24 April 1969, a DA Form 2173 was prepared by the executive officer.  The applicant's injury was considered to have been incurred in the LOD.  The applicant was not under the influence of alcohol or drugs, was mentally sound, his injury was not likely to result in a claim against the government, and the injury was incurred in the LOD.

13.  The commander approved the IO's findings on 12 March 1969.  The reviewing authority approved the findings on 28 April 1969.  

14.  On 3 September 1969, the OTAG approved the LOD.

15.  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 by medical personnel, and the medical treatment must have been made a matter of official record.   The regulation further provides examples of some events or situations that clearly do not justify award of the Purple Heart.  These examples include:  accidents, explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for award of the Purple Heart and the supporting evidence were carefully considered.  However, by regulation, in order to support award of the Purple Heart, there must be evidence confirming that the wound for which the award is being considered was received as a direct result of, or was caused by hostile enemy action. 

2.  The evidence shows that the applicant was shot in the right foot by another Soldier attempting to clear a .45 Caliber Pistol assigned to another Soldier.  His injury was considered in the LOD.  The evidence clearly shows that the injury he sustained was not incurred as a result of hostile action.  His name did not appear on the Vietnam Casualty Roster and the ADCARS failed to show that orders were published awarding him the Purple Heart.  Based on the facts presented, the evidence presented is insufficient to award the Purple Heart to the applicant.  

3.  The applicant claims that orders were omitted from the Secretary of the Army/OTAG Letter, dated 3 September 1969, and that the Purple Heart was not given.  However, the letter indicated only that the LOD was approved.  The letter did not mention that a Purple Heart would be recommended or awarded to the applicant for his accidental injury.

4.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is insufficient basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x_____  __x_____  ___x____  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.



      ________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)                                         AR20080005669



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ABCMR Record of Proceedings (cont)                                         AR20080005669



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