IN THE CASE OF:
BOARD DATE: 17 July 2008
DOCKET NUMBER: AR20080007592
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 award of the Purple Heart.
2. The applicant states, in effect, that he was hurt in an accident in November 1968 while in the Republic of Vietnam (RVN).
3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 5 September 1967, the applicant was inducted into the Army of the United States. He was trained in, awarded, and served in military occupational specialty (MOS) 13A (Field Artillery Basic). He attained the grade of specialist four/E-4. On 11 April 1969, he was released from active duty and transferred to the U.S. Army Control Group (Annual Training). On 1 September 1973, he was honorably discharged from the USAR upon completion of his statutory military obligation.
3. The applicant served in the RVN from 8 March 5 November 1968. He performed duties as cannoneer with B Battery, 4th Battalion, 42nd Artillery,
4th Infantry Division.
4. Item 24 of the applicants DD Form 214 does not show award of the Purple Heart. Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not record any wounds sustained as a result of hostile action.
5. There are no general orders in the applicants records to show he was awarded the Purple Heart.
6. The applicant's name does not appear on the Vietnam Casualty Roster.
7. There are no medical records in the available military personnel file that show the applicant sustained wounds as a result of hostile action or that show he was treated for wounds sustained as a result of hostile action. There are service medical records showing the applicant was medically evacuated on 5 November 1968 for treatment of a compression fracture of the T12 sustained as a result of an accident when a bunker collapsed on the applicant.
8. The DA Form 2173 (Statement of Medical Examination and Duty Status), dated 1 November 1968, indicates that the applicant went into an ammunition bunker to prepare ammunition. Due to recent heavy rains in the area, the sand bags began slipping and the bunker collapsed, pinning the applicant inside.
9. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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. This regulation further states that there is no time limit on submission of requests for award of the Purple Heart. Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action are examples of injuries or wounds which clearly do not qualify for award of the Purple Heart.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he is entitled to award of the Purple Heart.
2. In order to be entitled to award of the Purple Heart, the applicant must show that he was wounded or injured as a result of hostile action or treated for such wounds. The evidence in his service medical records clearly shows that he sustained a back injury when a bunker collapsed. There is no evidence that the bunker collapsed as a result of enemy action. The investigation report showed the bunker collapsed as a result of heavy rains in the area.
3. In the absence of evidence that the applicant was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case. Given the above, there is no basis to grant award of the Purple Heart.
4. 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
__xxx___ __xxx___ __xxx___ 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.
XXX
_______________________
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.
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