IN THE CASE OF:
BOARD DATE: 3 March 2009
DOCKET NUMBER: AR20080018845
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, as the mother of a deceased former service member (FSM), requests that her late son be posthumously awarded the Purple Heart.
2. The applicant states that her son was mortally wounded by friendly fire that was intended for the enemy.
3. A letter, provided on behalf of the applicant by her daughter, states that the FSM was killed in Vietnam in 1966, that he did not receive the Purple Heart for his heroic service in Vietnam, and that she believes this was an oversight because his unit was in the middle of a large scale offensive mission at the time. She states that telegrams and a Statement of Casualty report indicate the FSM was shot by friendly fire while on guard duty on 11 August 1966 and later died on 15 August 1966 as a result of cardiac arrest.
4. The applicant provides an undated letter from her daughter; a DA Form 52-2 (Statement of Casualty), dated 19 August 1966; three August 1966 Western Union telegrams; numerous entries from her sons Vietnam Diary; an Honorable Service certificate; and a letter, dated 2 September 1966, from the Commanding General, U.S. Military Assistance Command, Vietnam in support of her 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The FSM enlisted in the Regular Army on 7 January 1965 for a period of
3 years. He successfully completed basic combat and advanced individual training in military occupational specialty 11H (infantry direct fire crewman). He arrived in Vietnam on 15 July 1966.
3. A DD Form 1300 (Report of Casualty), dated 19 August 1966, states, in pertinent part, that the FSM died on 15 August 1966 in Vietnam as the result of cardiac arrest due to a gunshot wound to the abdomen incurred on the night of 11 August 1966 when he was hit by small arms fire, fired by friendly forces. This form also states that it was a non-battle casualty report.
4. A DD Form 1300, dated 31 October 1966, states, in pertinent part, that the FSM died on 15 August 1966 in Vietnam as the result of cardiac arrest due to a gunshot wound to the abdomen incurred on the night of 11 August 1966. It states that the FSM was moving about the company position in the darkness when he was challenged by a sentry who then fired on him before he could make his identity known. This form also states that it was a non-battle casualty report.
5. In support of her claim, the applicant provided Western Union telegrams which state the FSM was placed on the seriously ill list in Vietnam on 11 August 1966 as the result of a gunshot wound to his left thigh while on guard duty and that he died on 15 August 1966 as a result of the gunshot wound. She also provided entries from his Vietnam diary.
6. 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. The regulation also provides, in pertinent part, for award of the Purple Heart to individuals wounded or killed as a result of friendly fire in the heat of battle 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:
The applicants contentions were carefully considered. However, the non-battle casualty report shows the FSM, while on guard duty, was moving about the company position in the darkness when he was challenged by a sentry who then fired on him before he could make his identity known (i.e., friendly fire). There is no evidence of record which shows the friendly fire was in the heat of battle, as required by the governing regulation. Regrettably, in the absence of evidence to show the guard position was under attack at the time the FSM was struck by friendly fire, there is insufficient evidence on which to base 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:
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 her son in service to our
Nation. The applicant and all Americans should be justifiably proud of her son's 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.
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