IN THE CASE OF:	  

		BOARD DATE:	  7 July 2009

		DOCKET NUMBER:  AR20090002639 


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 that his records be updated to include a Purple Heart that was awarded to him as a result of friendly fire.

2.  The applicant states “See 10 USC SEC. 1129 01/05/99 Title 10 – Armed Forces Subtitle A - General Military Law Part II – Personnel Chapter 57 Decorations and Awards Section 1129.  Purple Heart: Members Killed Or Wounded In Action By Friendly Fire Statute (B).”

3.  The applicant provides a copy of Letter Orders Number D 1-682 dated 20 January 1972; a copy of Medical Board Proceedings dated 30 August 1971; and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 9 July 1969, the applicant enlisted in the Regular Army in Pittsburgh, Pennsylvania, for 2 years, in the pay grade of E-1.  He successfully completed his training in field artillery basic.  He arrived in Vietnam on 7 November 1969.  He departed Vietnam in a casualty status on or about 15 December 1969.

3.  The applicant departed Japan en route to the Continental United States on 31 December 1969 and he arrived at Valley Forge General Hospital on 2 January 1970.

4.  The applicant’s Clinical Record Narrative Summary dated 30 July 1970 shows that on 15 December 1969, he was sitting with his knees flexed when a friendly M-79 grenade was accidentally discharged and struck him on the front of his right knee.  The grenade did not explode; however, he sustained a closed comminuted fracture of the right patella with superficial skin abrasions.  He was initially treated at the 67th evacuation hospital and placed in a bulky dressing and cast.  He was then sent to Japan to the 106th General Hospital where he was placed in a long-leg cast.  

5.  The applicant was honorably retired from the Army on 21 December 1970, under the provisions of Title 10 U. S. Code 1202, due to temporary physical disability.  The DD Form 214 that he was furnished at the time of his retirement shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal and the Marksman Marksmanship Qualification Badge (Rifle      M-16).

6.  The applicant’s official military personnel record does not contain orders awarding him the Purple Heart.

7.  The Medical Board Proceedings that the applicant submitted in support of his application, dated 30 August 1971, shows that he was diagnosed with arthritis, due to trauma, right knee; tear, posterior cruciate ligament, right knee; tear, posterior capsule, right knee; and fracture, right patella all of which were injuries secondary to the injury that accidentally incurred on 16 December 1969, when he was injured by a friendly M-79 round in the company area, while he was in Vietnam.




8.  Letter Orders Number D 1-682 dated 20 January 1972 show that the applicant was permanently retired by reason of physical disability on 31 January 1972.

9.  Included as part of the Department of Defense Appropriations Act for fiscal year 1994 was an amendment to the rules governing award of the Purple Heart.  While the original rules established that the Purple Heart would be awarded to individuals killed or wounded as a result of hostile action the amendment enabled the Secretaries of each department to award the Purple Heart to members of the armed forces who were killed or wounded in action by weapon fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States.  This ruling, in effect, granted the service Secretaries the authority to award the Purple Heart to individuals directly engaged in armed conflict who were killed or wounded as a result of "friendly fire."

10.  Army Regulation 600-8-22 (Military Awards) 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:

1.  The applicant contends that his records should be updated to include a Purple Heart that was awarded to him as a result of friendly fire.

2.  His contentions have been noted and while his records clearly show that he was wounded by a friendly projectile, there is no evidence in the available record, nor has the applicant submitted any evidence, to show that he was awarded the Purple Heart.

3.  The applicant’s Clinical Record Narrative Summary shows that he was injured when he was sitting with his knees flexed and a friendly M-79 grenade was accidentally discharged and struck him on the front of his right knee.  

4.  According to the applicable regulation, the Purple Heart is awarded 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.  Based on the description of how his injury occurred, he does not meet the criteria contained in Army Regulation 600-8-22 for award of the Purple Heart.  Therefore, there is no basis for updating his records to include the award of the Purple Heart.

5.  In order to justify correction of a military record the applicant must show 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.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090002639



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090002639



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1