IN THE CASE OF: .
BOARD DATE: 28 MAY 2009
DOCKET NUMBER: AR20090003488
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 a comrade accidently tossed a knife that stabbed him in his knee during a search and destroy mission while following the movement of enemy Soldiers in the Republic of Vietnam in 1968. He also states that he was immediately medically evacuated to a hospital for treatment.
3. The applicant provides a copy of an on-line Department of Veterans Affairs printout, dated 6 January 2009, that shows his service-connected disabilities, one of which is for residuals of a stab wound to the left knee, in support of his 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 applicant's records show he enlisted in the Regular Army for a period of 2 years on 10 January 1967. He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman). He was honorably released from active duty in the rank/grade of specialist four/E-4 and transferred to the U.S. Army Reserve Control Group (Annual Training) on 29 November 1968.
3. The applicants records show he served in the Republic of Vietnam from on or about 5 December 1967 to on or about 26 November 1968. He was assigned to Company B, 3rd Battalion, 3rd Infantry Regiment, 11th Infantry Brigade.
4. Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicants DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Expert Marksmanship Qualification Badge with Rifle Bar, the Combat Infantryman Badge, and two overseas service bars. Item 24 does not show award of the Purple Heart.
5. Item 40 (Wounds) of the applicants DA Form 20 (Enlisted Qualification Record) shows a blank entry.
6. The applicant's name is not shown on the Vietnam casualty roster.
7. There are no general orders in the applicant's records that show he was awarded the Purple Heart.
8. The applicant's available medical records do not reflect an injury/wound resulting from hostile action or treatment for such injury/wound.
9. 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.
10. Army Regulation 600-8-22 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 he should be awarded the Purple Heart.
2. There is no evidence in the applicants records and the applicant did not provide any evidence that shows his alleged stab wound occurred in the heat of battle or that it was released with the full intent of inflicting damage or destroying enemy troops or equipment. Additionally, there is no evidence in the applicant's records that he was wounded or injured as a result of hostile action or treated for such wounds.
3. In the absence of documentation that shows he was wounded 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 or that 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.
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ABCMR Record of Proceedings (cont) AR20090003488
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