IN THE CASE OF:	  

		BOARD DATE:	        02 OCTOBER 2008

		DOCKET NUMBER:  AR20080009470 


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 he be awarded the Purple Heart. 

2.  The applicant essentially states that he received an eye wound while on a combat patrol in the Republic of Vietnam which led to his retirement due to permanent physical disability.  He also states that his father said that he saw a Purple Heart given to his mother in 1970, and that his injured eye was removed in Japan.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), five telegrams related to his eye injury, a self-authored statement outlining the criteria for award of the Purple Heart, a letter, dated 26 May 2008, from the National Personnel Records Center in St. Louis, Missouri, and a letter, dated 2 June 2008, from his mother to the Army Review Boards Agency in support of this 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 military records show that he was inducted into the Army of the United States on 8 August 1969.  He completed basic and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He departed for the Republic of Vietnam on 14 January 1970, and was assigned to Company D, 2nd Battalion, 3rd Infantry, 199th Infantry Brigade.  He injured his right eye on 17 June 1970, and was eventually reassigned to Walter Reed General Hospital in Washington, D.C., after having his right eye removed in Japan.  On 18 December 1970, he was honorably retired due to permanent physical disability.  The DD Form 214 that he was issued at the time of his retirement shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, the Combat Infantryman Badge, and the Marksman Marksmanship Qualification Badge with Rifle Bar.

3.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) contains an entry showing that the applicant had partial loss of sight in his right eye due to fragmentation wounds on 17 June 1970.  There is also an entry on the Vietnam Casualty Roster which appears to show that the applicant was wounded in action on 17 June 1970.  However, his DD Form 214 does not show that he was awarded the Purple Heart.  Item 41 (Awards and Decorations) of his DA Form 20 also does not show that he was awarded the Purple Heart.  There are no orders in his military records awarding him the Purple Heart, and a search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System, a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era, also failed to produce any orders awarding him the Purple Heart.  Additionally, the applicant's military records contained a Standard Form 502 (Clinical Record – Narrative Summary), dated 13 July 1970, which clearly shows that the applicant was struck by a single ball from a claymore mine which accidentally discharged on 17 June 1970.  

4.  The applicant provided five telegrams which essentially show, in part, that his mother was informed that the applicant was injured in Vietnam on 17 June 1970 by fragments while on a military mission when a mine detonated.  

5.  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 been treated by military medical personnel, and the medical treatment must have been made a matter of official records.  Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire; the wound or injury must have required treatment by military medical personnel; and the record of medical treatment must have been made a matter of official Army records.  

6.  Army Regulation 600-8-22 also provides that examples of enemy-related injuries which clearly justify award of the Purple Heart include injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; and injury caused by vehicle or aircraft accident resulting from enemy fire.

7.  This same regulation provides that examples of injuries or wounds which clearly do not qualify for award of the Purple Heart include heat stroke, battle fatigue, disease not directly caused by enemy agents; and accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.  

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart.

2.  The fact that the applicant was injured while serving in Vietnam, which ultimately led to his right eye being surgically removed and his retirement due to permanent physical disability, is truly unfortunate.  It was noted that item 40 of the applicant's DA Form 20 had an entry showing that he suffered fragmentation wounds, and that there was an entry on the Vietnam Casualty Roster for him.  However, the evidence of record clearly shows that he was accidentally injured when he was struck by a single ball from a claymore mine which accidentally discharged on 17 June 1970.  In accordance with the criteria for award of the Purple Heart his accidental injury, while tragic, does not qualify for award of the Purple Heart.  Regrettably, as a result, there is insufficient basis for awarding him the Purple Heart in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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 the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.




      ___        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.

ABCMR Record of Proceedings (cont)                                         AR20080009470



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ABCMR Record of Proceedings (cont)                                         AR20080009470



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