IN THE CASE OF:	

		BOARD DATE:	        23 September 2008

		DOCKET NUMBER:  AR20080009595 


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 that he be awarded the Purple Heart.

2.  The applicant states that he was given a Purple Heart, but he told them he did not want it.  He states that, in February 1966 while on a regular evening pass, he was waiting with a few other Soldiers to be picked up to be returned to camp before curfew.  They heard a long burst of machine gun fire about one block away.  They knew it was not friendly fire, because police at that time were not allowed to carry any weapons.  They all ran to hide, and he hid behind a power pole.  About 7 or 8 minutes later, he saw that about 15 men had surrounded him. As he stepped away from the power pole, a man ran forward with a Bowie knife.  He turned to run.  As he was running, a man stepped out of an alley with a pole.  He ran into the pole head first and was knocked out.

3.  The applicant states that when he came to, he was being carried by four Vietnamese men and several others were walking beside them.  He yanked his arms and legs and started fighting them on his back.  Several of the men fell on him.  He was then struck in the left eye and suffered a retinal detachment.  To his surprise, they did not kill him but left him in the street.  Some children helped him out of the street, and about 20 minutes later someone helped him to a military police jeep that took him to the medical station.  He was air lifted to a field hospital that night.  The next day, he was given a Purple Heart that was pinned to his pillow.  He told them not to give it to him, and they took it away.

4.  The applicant provides no additional evidence.

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 enlisted in the Regular Army on 20 January 1965.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 91E (Dental Specialist).

3.  The applicant arrived in Vietnam for his first tour and was assigned to the 36th Medical Detachment in June 1965.

4.  The applicant’s records contain a DD Form 261 (Report of Investigation Line of Duty and Misconduct Status) with three sworn statements, including one from the applicant.  The applicant stated that he was in Pleiku when he was attacked by a large group of Army of the Republic of Vietnam (ARVN) personnel.  One of the other Soldiers stated that when they came out of a bar they saw ARVN troops on the other side of the street throwing rocks, etc.  The other Soldier stated, in part, that all of a sudden the ARVN soldiers rushed all of the Americans, throwing rocks and bottles and they had knifes and web belts.  The applicant’s injuries were determined to have been incurred in the line of duty.

5.  The applicant was medically evacuated from Vietnam in February 1966.  He was honorably discharged on 16 November 1966 for the purpose of immediate reenlistment.  He reenlisted on 17 November 1966.

6.  The applicant was honorably released from active duty on 10 September 1970.  Neither his DD Form 214 for the period ending 1 November 1966 nor his DD Form 214 for the period ending 10 September 1970 show he was awarded the Purple Heart.


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.  The applicant’s injuries were indeed unfortunate; however, the evidence of record shows that they were not incurred as a result of hostile action.  The evidence of record shows that members of the South Vietnamese Army inflicted his injuries, and the South Vietnamese were America’s allies and not the enemy.

2.  Regrettably, there is insufficient evidence that would warrant awarding the applicant the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ____xx__  ___xx___  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.




      _______ 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.



ABCMR Record of Proceedings (cont)                                         AR20080009595





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ABCMR Record of Proceedings (cont)                                         AR20080009595



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