IN THE CASE OF:	

		BOARD DATE:	       30 OCTOBER 2008

		DOCKET NUMBER:  AR20080011917 


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 for wounds he received in combat.  

2.  The applicant states, in effect, that he was not awarded the Purple Heart.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and his Department of Veterans Affairs (DVA) Rating Decision, dated 23 December 2005, in support of his 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 was inducted into the Army of the United States on 9 April 1968.  At the completion of basic combat and advanced individual training, he was awarded military occupational specialty 11B (light weapons infantryman).  He was assigned to Vietnam on 11 September 1968 with Company D, 1st Battalion, 12th Infantry, 4th Infantry Division as a rifleman.

3.  Item 38 (Record of Assignments) on his DA Form 20 (Enlisted Qualification Record) shows he was transferred as a patient to Camp Zama, Japan on 31 July 1969.  On 25 August 1969, the applicant was transferred to Womack Army Medical Hospital at Fort Bragg, North Carolina.

4.  There are no orders in the applicant's personnel records which show he was awarded the Purple Heart.  His DA Form 20 (Enlisted Qualification Record) does not list any wounds as a result of hostile action in item 40 (Wounds) and the Purple Heart is not listed in item 41 (Awards and Decorations).  His name is not included on the Vietnam Casualty Roster.  

5.  Block 39 (Physician's Summary and Elaboration of All Pertinent Data) on the applicant's Standard Form (SF) 88 (Report of Medical History), dated 11 March 1970, shows he sustained multiple fragment wounds to the left side of his face, his left arm, abdomen, and both legs in the Republic of Vietnam in July 1969.  

6.  The applicant was released from active duty on 8 April 1970.  His DD Form 214 shows he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-14), the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), the First Class Gunner Badge with Machinegun Bar, the National Defense Service Medal, the Vietnam Service Medal, the Combat Infantryman Badge, the Republic of Vietnam Campaign Medal with Device (1960), and two Overseas Service Bars.  

7.  The DVA Rating Decision, dated, 23 December 2005, shows the applicant was awarded service-connection with a combined disability rating of 80 percent (effective 8 March 2005) for residual shell fragment wound (SFW) facial scar; Post Traumatic Stress Disorder with anxiety; residual wound, left arm with scar; SFW, left foot; residual SFW, left calf; shrapnel wound of the left mandible and left maxillary sinus with residual; wound of left side of face with residual jaw symptoms; residual SFW, subcutaneous tissue left shoulder; residual SFW abdomen and left flank; scar, residual SFW, left thigh; residual scar, exploratory laprotomy; residual SFW right thigh; and scar, SFW right calf.  

8.  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 medical personnel, and the medical treatment must have been made a matter of official record.  Paragraph 2-8b(2) states that for the purpose of considering an award of the Purple Heart, a “wound” is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.  The regulation states that the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.

DISCUSSION AND CONCLUSIONS:

1.  There are no orders which authorize award of the Purple Heart to the applicant.  His name is not listed on the Vietnam Casualty Roster.

2.  The Military Awards regulation states the fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not the sole justification for award of the Purple Heart.  The degree to which the enemy caused the injury must be considered.  

3.  The applicant’s medical documents indicate he sustained multiple fragment wounds to the left side of his face, his left arm, abdomen, and both legs in Vietnam.  However, there is no evidence of record which verifies his injuries were a result of hostile action in Vietnam.  He provides no evidence, such as affidavits from individuals who were eyewitnesses to the incident or from members of his chain of command who were aware of the circumstances surrounding his injuries.  Regrettably, there is insufficient evidence on which to base award of the Purple Heart in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board unanimously determined during their review that the evidence presented was sufficient to warrant recommendation for relief.  The applicant was wounded in combat in Vietnam in July 1969.  Regardless of whether his multiple shrapnel fragment wounds were from friendly or hostile fire he is entitled to award of the Purple Heart in accordance with Army Regulation 600-8-22.

2.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding the Purple Heart for wounds sustained in July 1969 and showing this award on his DD Form 214.




      ______________________
               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)                                         AR20080011917



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080011917



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1