IN THE CASE OF:	

		BOARD DATE:	  24 November 2008

		DOCKET NUMBER:  AR20080014367 


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 the award of a second Purple Heart.

2.  The applicant states, in effect, he was wounded twice by enemy fire but only awarded one Purple Heart.  The applicant states his first wound was to his right hand when he was setting out claymore mines.  He states a helicopter passing low set off the “electro device” causing the claymore to go off.  He states he was treated at a field hospital and returned to his unit 2 days later.  The applicant states he was wounded a second time by friendly fire.  He states he was wounded a third time on 10 August 1970.  He was medically evacuated to a field hospital, transferred to Camp Drake, Japan and then he was sent to Fort Sam Houston, Texas. 

3.  The applicant provides a map of the Republic of Vietnam on which he indicated the approximate places he was wounded and where he was hospitalized.

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 personnel record shows he was inducted on 9 July 1969 for a period of 2 years.  He successfully completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant was assigned to the 2nd Battalion, 14th Infantry in the Republic of Vietnam during the period from 11 January 1970 through 19 August 1970.

4.  A Standard Form 502 (Clinical Record, Narrative Summary), dated 9 February 1970, shows the applicant was treated for a blasting cap injury to his right hand.  However, there are no entries stating the injury was as a result of hostile action.

5.  Headquarters, 12th Evacuation Hospital General Orders Number 186, dated 
11 August 1970 (modified by 12 Evacuation Hospital General Orders Number 217, dated 26 September 1970) awarded the applicant the Purple Heart for wounds received in connection with military operations against a hostile force on 10 August 1970.

6.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) contains an entry indicating the applicant received multiple fragment wounds to his abdomen, both legs, and his right arm as a result of hostile or enemy action on 10 August 1970.

7.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows the award of the Purple Heart.

8.  On 10 February 1971, the applicant was released from active duty.   He had completed 1 year, 7 months, and 2 days of active service that was characterized as honorable.

9.  Item 24 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the Purple Heart.

10.  The applicant is listed on the Vietnam Casualty Roster once.  The Roster reports the applicant’s casualty status as hostile, wounded in action, not serious, hospitalized.  The Listing reports the date of casualty as 10 August 1970.

11.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards), then in effect, provided, in pertinent part, for award of the Purple Heart.  The regulation stated that authority to award the Purple Heart was delegated to hospital commanders.  Further, it directed that all personnel treated and released within 24 hours would be awarded the Purple Heart by the organization to which the individual is assigned.  Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam would be awarded the Purple Heart directly by the hospital commander rendering treatment.

12.  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, and the medical treatment must have been made a matter of official record.  A wound is defined as an injury to any part of the body from an outside force or agent sustained as a result of hostile action.  This regulation also provides that there is no time limitation on requests for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to a second Purple Heart.

2.  Orders from the 12th Evacuation Hospital, the entry in Item 40 of the applicant's DA Form 20, and the Vietnam Casualty Listing all show the applicant was wounded as a result of hostile action on 10 August 1970.  

3.  Regulations in effect at the time provided hospital commanders the authority to award the Purple Heart to personnel requiring hospitalization in excess of 
24 hours or evacuation from Vietnam.  Orders issued by the 12th Evacuation Hospital awarded the applicant the Purple Heart for wounds received on
10 August 1970.  

4.  The Clinical Record documents treatment for a blasting cap injury to the applicant's right hand on 9 February 1970.  However, there is no entry indicating the injury was the result of hostile action.  By the applicant's own statement he was wounded by a claymore that was set off by a low flying helicopter.  

5.  There is no evidence or official documentation showing the applicant was wounded by friendly fire.

6.  The Vietnam Casualty Listing only shows the applicant as having been wounded by hostile action once and there are no additional entries in Item 40 of the applicant's DA Form 20 indicating he was wounded more than once.  
7.  In the absence of military records which show that the applicant was wounded or treated for wounds resulting from hostile action more than once, there is insufficient evidence upon which to base a second award of the Purple Heart in this case.

8.  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 that requirement.

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 our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  





      _______ _ 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)                                         AR20080014367



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ABCMR Record of Proceedings (cont)                                         AR20080014367



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