IN THE CASE OF:	  

		BOARD DATE:	        23 DECEMBER 2008

		DOCKET NUMBER:  AR20080014252 


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 his military records be corrected to show the award of the Purple Heart.

2.  The applicant essentially states that he was awarded the Purple Heart in Vietnam on the hospital ship S.S. Hope in 1968 by the commander of the ship.  He also states, in effect, that the Purple Heart was not recorded in his records or that the paperwork was lost.

3.  The applicant provides a self-authored statement, dated 10 August 2008; his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that was issued to him on 31 August 1971; a photograph he states was taken on the S.S. Hope showing him being awarded the Purple Heart; photocopies of the front sides of his military and veteran's identification cards; orders, dated 27 June 1974, which retired him due to permanent physical disability on 1 August 1974; a Standard Form 502 (Clinical Record – Narrative Summary), dated 20 May 1974; an unknown Department of Veterans Affairs document with a run date of 31 March 2000; and a letter, dated 2 June 2008, which reminded the applicant of a clinic appointment on 17 June 2008 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 7 May 1964.  After completing initial entry training and airborne training, he was assigned to Fort Bragg, North Carolina in April 1965.  On 7 June 1966, he enlisted in the Regular Army.  In September 1967, he was reassigned to Fort Campbell, Kentucky, and was assigned to Headquarters and Headquarters Company, 1st Battalion, 502nd Infantry Regiment.  This unit made a permanent change of station to the Republic of Vietnam on 13 December 1967. On or about 30 April 1968, the applicant was reassigned to the Medical Holding Company, Womack Army Hospital, Fort Bragg, North Carolina and listed as a patient.  He was released from his patient status on or about 19 June 1968, and remained at Fort Bragg until he was reassigned to the Medical Holding Company, Walter Reed General Hospital in April 1971.  On 31 August 1971, he was placed on the Temporary Disability Retired List (TDRL).  The DD Form 214 that was issued to him at the time of his placement on the TDRL, which will simply be referred to as his DD Form 214 throughout the remainder of these proceedings, shows that he was awarded the Good Conduct Medal (2nd Award), the National Defense Service Medal, the Vietnam Service Medal, the Combat Infantryman Badge, the basic Parachutist Badge, and the Expert Marksmanship Qualification Badge with M-16 Rifle Bar.  On 1 August 1974, he was permanently retired due to physical disability.

3.  The applicant's military records do not show that he was awarded the Purple Heart.  The applicant's DD Form 214 also does not show that he was awarded the Purple Heart, and the applicant signed this document in item 32 (Signature of Person Being Transferred or Discharged), attesting to the accuracy of the information contained on this document.  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 name is not listed on the Vietnam Casualty Roster.  

4.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) contains an entry which essentially shows that he suffered a possible fracture of the cervical spine and thoracic spine on 6 April 1968.  His military records contained a Standard Form 502 (Clinical Record – Narrative Summary), dated 19 February 1971, which essentially shows that he was injured in Vietnam when he was blown off an armored personnel carrier which hit a Claymore mine. 

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 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.  A physical lesion is not required, however, the wound for which the award is made must have required treatment by a medical officer and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.  When contemplating an award of the Purple Heart, 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.  Paragraph 2-8h of this regulation also provides, in pertinent part, that examples of injuries or wounds which clearly do not justify award of the Purple Heart include accidents, to include explosive (emphasis added), aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

6.  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 his military records should be corrected to show the award of the Purple Heart.

2.  The fact that the applicant was injured in action while serving in Vietnam is not questioned.  However, the evidence shows that the applicant was injured in Vietnam when he was blown off an armored personnel carrier which hit a Claymore mine, which was not an enemy mine.  This essentially shows that the applicant's injuries resulted from an accident, and there is no evidence to suggest that action by the enemy caused the armored personnel carrier to hit the Claymore mine it struck.  The entry in item 40 of his DA Form 20 was noted; however, this single entry, along with the photograph the applicant provided which he claims was taken on the S.S. Hope showing him being awarded the Purple Heart, does not prove, by a preponderance of the evidence, that his injuries were the result of hostile action.  There are no orders in his military records, and the applicant failed to provide any orders awarding him the Purple Heart.  He also authenticated his DD Form 214 with his signature, attesting to the accuracy of the information contained on this document, which does not show that he was awarded the Purple Heart.  Additionally, his name is not listed on the Vietnam Casualty Roster.   

3.  While the sincerity of the applicant's claim to entitlement to award of the Purple Heart is not in question, regrettably, absent evidence which conclusively proves, by a preponderance of the evidence, that he was wounded or injured as a result of hostile action, there is insufficient basis upon which to grant relief to the applicant in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  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 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)                                         AR20080014252



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ABCMR Record of Proceedings (cont)                                         AR20080014252



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