IN THE CASE OF:	  

		BOARD DATE:	  	  11 December 2008

		DOCKET NUMBER:  AR20080013325 


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 that he was wounded by an enemy trip flare in October 1967 and he was treated by the senior medic of Company A, 2nd Battalion, 8th Cavalry, 1st Cavalry Division.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a statement from a former senior medic 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 7 February 1967.  At the completion of basic combat and advanced individual training, he was awarded military occupational specialty 11B (light weapons infantryman).  His highest pay grade attained was sergeant (SGT)/E-5.

3.  He was assigned to Vietnam on 8 August 1967 with Company A, 2nd Battalion, 8th Cavalry, 1st Cavalry Division.  

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).  His name is not included on the Vietnam Casualty Roster.  

5.  The applicant's service personnel record contains a Standard Form 600 (Chronological Record of Medical Care) which shows he was treated on 11 October 1967 for second degree burns to his fingers on his left hand.  

6.  The applicant was released from active duty on 6 February 1969 at his expiration of term of service.  

7.  His DD Form 214 shows he was awarded the National Defense Service Medal, two Overseas Service Bars, the Air Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, the Army Commendation Medal, the Combat Infantryman Badge, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  

8.  The applicant provided a statement from a former fellow Soldier in support of his claim.  The individual stated that he was the senior medic with Company A, 2nd Battalion, 8th Cavalry, 1st Cavalry Division.  He stated that the applicant set off a trip flare that had been abandoned by the Vietnamese.  He treated the applicant for the burns to his hand and gave him morphine for the pain.  He also stated that the applicant was evacuated and he spent several days in the hospital before he returned to duty.  

9.  Army Regulation 600-8-22 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.  By regulation, in order to award the Purple Heart it is necessary to establish that a Soldier was wounded in action, that the wound required treatment by medical personnel, and the treatment must have been made a matter of official record.  

3.  The applicant’s medical document was carefully reviewed.  However, it does not verify that the applicant was wounded or injured as a result of hostile action.  The letter of support stated the flare had been abandoned by the Vietnamese, indicating the applicant was not injured as a result of a hostile act by the enemy.  His medical document shows he was treated for second degree burns to fingers on his left hand.  It appears his commander decided the degree to which the enemy caused the applicant’s injury was insufficient to justify award of the Purple Heart.  

4.  In the absence of any other corroborating evidence of record which shows that the applicant was wounded or injured as a result of hostile action, there is insufficient evidence upon which to base award of the Purple Heart in this case.  

5.  The statements from the company senior medic were carefully reviewed. Regrettably, these statements alone are not sufficient to meet the regulatory burden of proof necessary to support award of the Purple Heart in this case.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ___X_____  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.



      ________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)                                         AR20080013325



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ABCMR Record of Proceedings (cont)                                         AR20080013325



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