IN THE CASE OF:	  

		BOARD DATE:	  23 June 2009

		DOCKET NUMBER:  AR20090003534 


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 injured on 28 November 1965 in the Republic of Vietnam when boiling water was poured on his right foot.  He adds that he went to the doctor where his foot was dressed and he was put on crutches for 2 weeks.  He was offered the Purple Heart at the time but turned it down.  He also states that he is now rated at a 100-percent service-connected disability.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 4 August 1967; a copy of his Standard Form 600 (Chronological Record of Medical Care), dated 22 September 1965 through 28 November 1965; a copy of page 2 of his 4-page DA Form 20 (Enlisted Qualification Record); and a copy of his DA Form 2658 (Health Record-Abstract of Service), dated on various dates throughout his military service, 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 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 records show he enlisted in the Regular Army for a period of 3 years on 7 August 1964.  He completed basic combat and advanced individual training and was awarded military occupational specialty 51B (Carpenter).  He was honorably released from active duty in the rank/grade of specialist four/E-4 on 4 August 1967 and transferred to the U.S. Army Reserve Control Group (Reinforcement).

3.  The applicant’s records show he served in the Republic of Vietnam from on or about 7 August 1965 to on or about 22 July 1966.  He was assigned to Company C, 62nd Engineer Battalion.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214, dated 4 August 1967, shows he was awarded the Vietnam Service Medal, the Army Commendation Medal, the National Defense Service Medal, and the Expert Marksmanship Qualification Badge with Rifle Bar.  Item 24 does not show award of the Purple Heart.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 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 medical records are not available for review with this case.  However, the applicant submitted a copy of his chronological record of medical care, dated 28 November 1965, that shows he injured his foot by pouring boiling water in his boots.  A dressing was applied to the foot and crutches were ordered for his use.

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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart.

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 available service personnel records which shows his burns resulted from hostile action and there is no evidence in his service personnel records that shows he was wounded or injured as a result of hostile action or treated for such wounds.  Absent evidence which conclusively shows that the applicant sustained wounds or injuries as a result of hostile action, that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is insufficient basis for awarding the Purple Heart to the applicant 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.



      __________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)                                         AR20090003534



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ABCMR Record of Proceedings (cont)                                         AR20090003534



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