IN THE CASE OF:	

		BOARD DATE:	 26 August 2008 

		DOCKET NUMBER:  AR20080009019 


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 his records be corrected to show he was issued the award of the Purple Heart for injuries he sustained on 10 April 1971 in the Republic of Vietnam.

2.  The applicant states, in effect, that the Soldier who was accused and court-martial for fragging [sic, for attempting to murder] 30 Soldiers was found not guilty on all accounts.  He states that none of the wounded Soldiers’ units were notified of the not guilty on all accounts verdict.

3.  The applicant provides a copy of his separation document (DD Form  
214), personal statement, Clinical Record, court-martial records, and a letter from U.S. Army Human Resources Command (USAHRC) that was addressed to the applicant's elected representative, dated 1 April 2008.

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 military personnel record shows he enlisted in the Regular Army on 9 September 1969.  He completed the necessary training and was awarded the military occupational specialty (MOS) 12B (Combat Engineer).

3.  He served with Company C, 9th Engineer Battalion (Combat) and Company B, 299th Engineer Battalion (Combat) in the Republic of Vietnam during the period 27 July 1970 to 14 April 1971.  He became a patient at the Medical Holding Company, U.S. Army Hospital, Camp Zama, Japan during the period  
15 April 1971 to 7 May 1971 and was transported to the United States to Valley Forge General Hospital, Phoenixville, Pennsylvania, on 8 May 1971.

4.  He was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training), St. Louis, Missouri on 20 March 1972. He completed 2 years, 6 months, and 12 days of Net Service This Period.

5.  The applicant’s DD Form 214, Item 24 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows award of the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with 1960 Device, Parachutist Badge, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

6.  The available evidence shows the applicant incurred 2nd degree splatter burns to the face, four extremities and scrotum comprising a total of less than
2 percent of his total body surface when an unknown person threw a white phosphorus grenade into a crowded enlisted men’s club in Cam Ranh Bay, Republic of Vietnam on 10 April 1971. 

7.  The statement the applicant submitted addresses the same incident that occurred on 10 April 1971 and gives an update of the applicant’s current medical condition.  Court-martial records presented by the applicant shows the Soldier was found not guilty on all accounts including attempted murder.

8.  A letter from the USAHRC states, in effect, that the applicant did not meet the criteria for award of the Purple Heart, because the Purple Heart is awarded to Soldiers who were wounded or injured as a result of enemy action.  The USAHRC further states that a provision of Section 1129, Title 10, United States Code, authorize the Secretaries of military departments to award the Purple Heart to individuals who are killed or wounded by friendly fire.  To be awarded the Purple Heart for friendly fire, the Soldier must have been directly engaged in armed conflict and the "friendly" projectile or agent must have been released with the full intent of inflicting damage or destroying enemy troops or equipment.

9.  A review of the Republic of Vietnam Casualty Roster does not show the applicant's name listed among those wounded.

10.  Army Regulation 600-8-22 (Military Awards) 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 a medical officer, and the medical treatment must have been made a matter of official record.  This same regulation further 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.  The applicant contends that he should be entitled to the award of the Purple Heart.

2.  The evidence shows the applicant was wounded when an unknown person threw a white phosphorus grenade into a crowded enlisted men’s club at Cam Ranh Bay, in the Republic of Vietnam, with the intent to murder on 10 April 1971. 

3.  While the Soldier charged with attempted murder for the fragging was found not guilty, there is no substantiating evidence to show the applicant was wounded as a result of hostile action.  Without evidence to show the applicant was wounded as a result of hostile action, the applicant does not meet the criteria for the award of the Purple Heart.  As such, the applicant is not entitled to award of the Purple Heart for wounds he sustained in the Republic of Vietnam, on 10 April 1971. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  __X_____  ___X___  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 the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _  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)                                         AR20080009019



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ABCMR Record of Proceedings (cont)                                         AR20080009019



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