IN THE CASE OF:
BOARD DATE: 12 August 2008
DOCKET NUMBER: AR20080008560
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 he was medically evacuated to Japan and remained in the hospital for three months.
3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a Department of Veterans Affairs Rating Decision, dated 21 July 2005.
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. Most of the applicants Regular Army records are not available to the Board for review. However, there were sufficient documents available for the Board to conduct a fair and impartial review of this case.
3. The applicant enlisted in the Regular Army on 11 December 1968. His DD Form 214 shows he served in Vietnam from 23 May 1969 to 2 April 1970.
4. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 30 May 1970, shows that the applicant was walking through the gate at the Rest and Recreation Center at Bien Tuy and was shot on 1 April 1970. An investigation by the Armys Criminal Investigation Division (CID) and the Army of the Republic of Vietnams CID disclosed that a Vietnamese national, working on guard duty at the Rest and Recreation Center gate, accidentally discharged his rifle, causing a bullet to strike the applicant in the left leg.
5. On 12 November 1971, the applicant was honorably released from active duty. His DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal with device (1960).
6. The applicants name is not listed on the Vietnam Casualty Roster.
7. Army Regulation 600-8-22 (Military Awards) states 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.
DISCUSSION AND CONCLUSIONS:
1. Regrettably, the available evidence of record shows that the applicant was shot when a gate guard accidentally discharged his rifle, causing a bullet to strike him in the left leg. Although the gate guard was a Vietnamese national, there is no evidence of record to show that the applicants injury was other than the result of an accident, not the result of hostile action.
2. Therefore, there is insufficient evidence to show the applicant met all the eligibility criteria for award of the Purple Heart.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
_____xx_ ___xx___ ___xx___ 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 wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by him in service to our Nation. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ xxxx_____ ___
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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