IN THE CASE OF:	  

	BOARD DATE:	  24 July 2008

	DOCKET NUMBER:  AR20080007382 


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 (PH).

2.  The applicant states, in effect, that while serving in the Republic of Vietnam (RVN), he was wounded after being hit from friendly fire in the vicinity of firebase Ripcord.  He also states that he is unsure of why he was never awarded the PH for the injuries he sustained; however, he believes that at the time every one was to busy with body count and trying to find dog tags to concern themselves with him being awarded the PH.  

3.  The applicant provides his separation document (DD Form 214) 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 record shows he enlisted into the Regular Army and entered active duty on 19 March 1968.  He was trained in and awarded military occupational specialty (MOS) 36K (Field Wireman), and specialist four (SP4) is the highest rank he attained while serving on active duty. 

3.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he served in the RVN from 9 November 1969 through 16 July 1970.  During his RVN tour, he was assigned to Headquarters and Headquarters Company, 1st Brigade, 101st Airborne Division, performing duties in MOS 36K as a field wireman.  Item 40 (Wounds) is blank and the PH is not included in Item 41 (Awards and Decorations).   

4.  The applicant's Official Military Personnel File (OMPF) contains a Clinical Record Narrative Summary (SF 502), dated 9 December 1970.  This document states that while serving in the RVN on 4 July 1970, the applicant was injured by a falling flare canister which struck the lateral aspect of the right femur.  

5.  On 26 March 1971, the applicant was honorably released from active duty (REFRAD) after completing 3 years and 8 days of active military service.  The DD Form 214 he was issued shows he earned the following awards during his active duty tenure:  National Defense Service Medal; Vietnam Service Medal, RVN Campaign Medal, and Parachutist Badge.  The PH is not included in the list of awards contained on the DD Form 214, and the applicant authenticated the separation document with his signature on the date of his REFRAD.  

6.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant's name was not included on this casualty list.  The staff member also reviewed the 
DA Awards and Decorations Computer Assisted Retrieval System (ADCARS), which contains award orders issued during the Vietnam Era.  There were no orders pertaining to the applicant on file.

7.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to award a PH there must be evidence that a member was wounded or injured as a result of enemy action, that the wound required treatment by a medical officer and a record of this treatment must have been made a matter of official record.  The regulation states that award of the PH for friendly fire is authorized when the member is wounded by weapon fire while directly engaged in armed conflict, and was the result of an act by the enemy.  It further provides examples of wounds or injuries that clearly do not support award of the PH, which includes accidental wounding not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been awarded the PH for being wounded by friendly fire while serving in the RVN was carefully considered. However, by regulation, in order to award a PH, it is necessary to establish that a member was wounded in action that the wound required treatment by a medical officer, and this treatment must have been made a matter of official record.  Further, the regulation stipulates that PH for friendly fire is authorized when the member is wounded by weapon fire while directly engaged in armed conflict, which was the result of an act by the enemy.  It further provides examples of wounds or injuries that clearly do not support award of the PH, which includes accidental wounding not related to or caused by enemy action.

2.  The evidence of record confirms the applicant was injured on 4 July 1970, by a falling flare canister.  However, there is no indication that at the time of this accident, the applicant was directly engaged in action with the enemy, or that it was the result of enemy action.  Although the accident that resulted in his injuries was unfortunate, absent any evidence that the accident occurred while the applicant was engaged in action against the enemy, the friendly fire criteria necessary to support award of the PH has not been met.  

3.  Further, the applicant's record is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority. The PH is not included on his DA Form 20 or on his DD Form 214, and his name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  Absent any evidence that he was ever treated for a combat related wound or injury while serving on active duty, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Thus, it would not be appropriate or in the interest of all those who served in the RVN and who faced similar circumstances to grant the requested relief in this case.  

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

5.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  


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)                                         AR20080007382



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ABCMR Record of Proceedings (cont)                                         AR20080007382


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