IN THE CASE OF:	  

		BOARD DATE:	        02 December 2008

		DOCKET NUMBER:  AR20080014564 


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 in combat in the Republic of Vietnam (RVN) and he was not issued a Purple Heart.  The applicant contends that his wound is rated as 10 percent disabling by the Department of Veterans Affairs (DVA) and he wants to increase his disability rating by receipt of 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); a copy of his marriage certificate; and a copy of his birth certificate.

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.  On 20 May 1965, the applicant was inducted into the Army of the United States.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He attained the grade of specialist four (SP4)/E-4.  On 20 May 1967, he was released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).  On 27 May 1971, he was honorably discharged from the USAR upon completion of his statutory military obligation.

3.  The applicant served in the RVN from 28 November 1965 through
25 November 1966.  He performed duties as a rifelman with Companies A and C, 1st Battalion, 7th Cavalry.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 covering his period of service in the RVN does not show award of the Purple Heart.  The applicant authenticated his DD Form 214 with his signature.

5.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) states "Hit in right shoulder by a small shrapnel of M79 GD Launcher."  The date the applicant received the shrapnel wound is not annotated.  This area of the form is normally reserved for annotating wounds received in action against the enemy.

6.  There are no medical records in the available military personnel file that show the applicant sustained wounds as a result of hostile action or that show he was treated for wounds sustained as a result of hostile action.  The applicant's separation physical notes a scar on the right shoulder; however, it does not indicate how the applicant received the scar.  

7.  There are no general orders in the applicant’s records to show he was awarded the Purple Heart.  During the processing of this case, a member of the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the United States Army Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any Purple Heart orders on file for the applicant.

8.  The applicant's name does not appear on the Vietnam Casualty Roster.

9.  The applicant underwent a DVA physical examination in conjunction with his request for compensation on 2 August 1967.  This examination shows that the applicant reported receiving shrapnel wounds to the right should and right bicep in the RVN in 1966.  An x-ray showed there was a small metallic foreign body in the soft tissues adjacent to the applicant's upper third of the right humerus, bilaterally and slightly posteriorly.   

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.  This regulation also stipulates that Soldiers 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" projective or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.  This regulation further states that there is no time limit on submission of requests for award of the Purple Heart.    

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to award of the Purple Heart.

2.  In order to be entitled to award of the Purple Heart, the applicant must show that he was wounded or injured as a result of hostile action or treated for such wounds.  Given that the official record corroborates that he sustained a right shoulder shrapnel wound by a M79 grenade launcher which is in the U.S. Army weapons inventory, there is the possibility that his shrapnel wound was the result of "friendly fire."

3.  In order to be entitled to award of the Purple Heart as a result of "friendly fire," the applicant must show that the wound he sustained from "friendly fire" was in the "heat of battle" and that the "friendly" projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.  The applicant has made no such claim and there is no objective evidence to support this scenario.  

4.  Given the above, and in the absence general orders in the applicant’s records to show he was awarded the Purple Heart, there is insufficient evidence to show how the applicant sustained his right shoulder shrapnel wound.  Although, the DVA may grant service connection to the applicant for his shrapnel wound, this action does not establish entitlement to the Purple Heart.

5.  Regrettably, the available evidence does not support award of the Purple Heart.  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.   

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)                                         AR20080014564





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080014564



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1