IN THE CASE OF:	  

		BOARD DATE:	  16 October 2008

		DOCKET NUMBER:  AR20080013829 


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, award of the Purple Heart (PH).

2.  The applicant states, in effect, that he was wounded in his left eye while serving in the Republic of Vietnam (RVN), which entitles him to be awarded the PH. 

3.  The applicant provides a copy of a his separation document (DD Form 214)
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’s military records show that he enlisted into the Regular Army (RA) and entered active duty on 19 May 1969.  He successfully completed basic training at Fort Bliss, Texas, and advanced individual training (AIT) at 
Fort Ord, California.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman). 

3.  The applicant’s Enlisted Qualification Record (DA Form 20) includes an entry in Item 31 (Foreign Service) that shows he served in the RVN from 12 October 1969 through 16 February 1970.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned with Company B, 3rd Battalion, 1st Infantry Regiment.  

4.  Item 40 (Wounds) of the applicant’s DA Form 20 contains no entry and the PH is not included in the list of awards contained in Item 41.  Item 48 (Date of Audit) shows the applicant last audited the DA Form 20 on 30 March 1970.  

5.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no orders or other documents showing that he was ever wounded or injured as a result of hostile action, or that he was ever recommended for or awarded the PH by proper authority.   

6.  The MPRJ contains a Western Union Telegram, dated 7 February 1970, which indicates that the applicant was injured in the RVN while at a night defensive position by a fragment when a grenade prematurely detonated.  It indicates he sustained a traumatic macular wound and contusion to his left eye. The telegram confirms the injury the applicant sustained was the result of 
non-hostile action (accidental).  

7.  On 13 May 1971, the applicant was honorably released from active duty (REFRAD) after completing a total of 1 year, 11 months, and 25 days of active military service.  The DD Form 214 issued to him at the time confirms that he earned the following awards during his active duty tenure:  National Defense Service Medal; Vietnam Service Medal; RVN Campaign Medal; Combat Infantryman Badge (CIB); and Marksman Marksmanship Qualification Badge with Rifle (M-16) Bar.  The PH is not included in the list of awards and the applicant authenticated the DD Form 214 with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his REFRAD. 

8.  In connection with the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster, which contains the names of those Soldiers wounded in action in the RVN.  The applicant’s name was not included on this roster.  

9.  Army Regulation 600-8-2 (Military Awards) prescribes the Army’s awards policy.  Paragraph 2-8 contains guidance on awarding the PH.  It states, in pertinent part, that the PH is authorized to members who are wounded in action.  It further defines a wound as an injury to any part of the body from an outside force or agent sustained in action.  It also stipulates that the wound for which a PH is being awarded must have required treatment by medical personnel, and the records of medical treatment for the wound of injury for which the PH is being awarded must have been made a matter of official record.  

10.  The PH guidance contained in the awards regulation further states that accidents, to include accidental wounding, not related to or caused by enemy action clearly do not qualify for award of the PH.  It further states that individuals wounded or killed as a result of "friendly fire" in the "heat of battle" will be awarded the Purple Heart 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's contention that the wounds he received to his left eye while serving in the RVN warrants the award of the PH has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record specifically indicates that the applicant was wounded as a result of non-hostile action when a grenade prematurely detonated, as confirmed by the Western Union Telegram on file.  This would indicate that the applicant’s wounding was accidental.  There is no evidence to show that the applicant or his unit was actively engaged in combat with the enemy at the time of the applicant’s accidental wounding, nor is there evidence showing that the grenade in question was detonated with the intent to inflict damage or destroy enemy troops.  Lacking such evidence, there is no basis to conclude the applicant’s wounding was the result of enemy action.  

3.  The evidence of record provides no indication that the applicant was ever wounded in action while serving in the RVN, or that shows he was ever recommended for or awarded the PH by proper authority while serving on active duty.  

4.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action, and the PH is not included in the list of awards contained in Item 41.  The applicant last audited the DA Form 20 on 30 March 1970, subsequent to his departure from the RVN.  In effect, this audit was his 

verification that the information contained on the DA Form 20, to include the Item 
40 and Item 41 entries, was correct at that time.  In addition, his record is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty.  It is also void of any medical treatment records indicating he was ever treated for a combat-related wound or injury.  

5.  In addition, the PH is not included in the list of awards contained on the applicant's DD Form 214, which he authenticated with his signature on the date of his REFRAD.  In effect, his signature was his verification that the information contained on the separation document, to include the list of awards, was correct at the time the DD Form 214 was prepared and issued.  Finally, his name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  As a result, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case. 

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  

7.  The applicant and all others concerned should know that this action related to award of the PH 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.

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.



      ________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)                                         AR20080013829



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ABCMR Record of Proceedings (cont)                                         AR20080013829



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