IN THE CASE OF:	  

		BOARD DATE:	        27 MAY 2009

		DOCKET NUMBER:  AR20090003270 


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 during a mortar attack while on duty at his base camp in Na Trang, Republic of Vietnam, he sustained a broken right wrist and was taken to a field hospital where his arm was examined and was put in a cast. He refused the Purple Heart at the time because he felt that an award of that significance was best awarded to members with more serious injuries, but after suffering intermittently for the past 40 years including having to have surgery to remove the fractured bone from that injury, he now feels the award is justified.  

3.  The applicant provides a copy of his Standard Form 88 (Report of Medical History), dated 6 December 1969; a copy of his electronic clinical document, dated 20 June 1995; five statements dated in January 2009, from his former personnel sergeant, comrades, and former unit members; two photographs; and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or discharge), dated 6 December 1969, in support of his request.

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 are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant's DD Form 214 shows he enlisted in the Regular Army for a period of 3 years on 24 April 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 84B (Photographer).  

4.  The applicant’s DD Form 214 also shows he completed 1 year, 7 months, and 6 days of foreign service, presumably in the Republic of Vietnam.  This form also indicates his last duty assignment and major command were Company A, 8th Psychological Battalion, 4th Psychological Operations Group, U.S. Army Republic of Vietnam (USARV).

5.  The applicant’s DD Form 214 further shows he was honorably released from active duty in the rank/grade of specialist four (SP4)/E-4, as an overseas returnee, and transferred to the U.S. Army Reserve Control Group (Reinforcement) on 6 December 1969.  

6.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), of the applicant’s DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal.  Item 24 does not show award of the Purple Heart.

7.  The applicant’s DA Form 20 (Enlisted Qualification Record) is not available for review with this case.  

8.  The applicant's name is not shown on the Vietnam Casualty Roster.



9.  The applicant's complete medical records are not available for review with this case.  However, the applicant submitted a copy of his Standard Form 88 (Report of Medical History), dated 6 December 1969, in which he indicated that he suffered a broken right wrist and was treated at the 8th Field Hospital during his service in the Republic of Vietnam.  

10.  During the processing of this case, a member for 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.

11.  The applicant submitted five statements of support as follows:

	a.  in a statement, dated 12 January 2009, the applicant’s former S-1 message center sergeant states that his duties included routing and distributing all official and unofficial mail, documents, messages, and packages into and out of the unit headquarters.  In early 1969, while culling through documentation left by his predecessor, he saw a hand-written note about a Purple Heart for the applicant with a question mark.  He did not know the applicant at the time and placed the note in a stack of non-urgent items for the command sergeant major’s (CSM) attention.  In late September 1969, the CSM instructed him to bring a box of Purple Heart awards back from USARV.  This brought to his mind the note he had found.  He then showed the note to the CSM who recognized the applicant as the one injured in a mortar attack and that he (the applicant) declined to complete the paperwork for it because others were more seriously injured.  The former S-1 message center sergeant also states that the CSM said that the applicant was making a mistake by refusing the Purple Heart; 

	b.  in a statement, dated 13 January 2009, a comrade-in-arms and former member of the unit states that he was stationed with the applicant in the same unit as an illustrator and that during one late-night mortar attack in September or October 1968, they were moving out under fire to retrieve their weapons when the applicant fell and sustained a broken wrist and a sharp bang to the head; 

	c.  in a statement, dated 9 January 2009, another of the applicant’s former unit members states that he served with the 8th Psychological Operations Battalion from approximately May 1968 to June 1969.  He adds that to the best of his recollection, the applicant suffered an arm or a wrist injury as a result of a mortar attack which occurred in approximately October 1968; 


	d.  in a statement, dated 22 January 2009, a former unit member and combat artist who worked on the leaflet program states that the weapons were stored in a secured armory in their base camp.  One night they came under heavy mortar attack and were instructed to retrieve their weapons and take cover in their bunkers.  During the attack which took place around the end of September or beginning of October 1968, they were moving out under fire to retrieve their weapons when the applicant suffered a broken wrist.  It was a hectic situation at the time, but when the dust settled, he was put into a cast for his injury; and 

	e.  in a statement, dated 21 January 2009, a Soldier who was stationed in Na Trang, Vietnam from May 1968 to April 1969, states that a photographer of Company A broke his right arm jumping into a bunker while he was under fire. 

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he is entitled to award of the Purple Heart and the evidence presented was carefully considered; however, it is insufficient to award the applicant the Purple Heart in this case.  None of the authors of the statements provided by the applicant states that he witnessed the applicant being injured or wounded as a result of the hostile attack. 

2.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria.  When contemplating an award of this decoration, 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.

3.  There is no evidence in the applicant’s reconstructed records that shows the wrist injury resulted from hostile action or that he was treated for such injury.  In the absence of documentation that shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon 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:

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)                                         AR20090003270



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ABCMR Record of Proceedings (cont)                                         AR20090003270



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