IN THE CASE OF:	  

		BOARD DATE: 	        30 June 2009

		DOCKET NUMBER:  AR20090003577 


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 wounded in action and was transferred to a local hospital in Quang Tri in the Republic of Vietnam and was awarded the Purple Heart, but he did not receive the certificate or the medal.  He also states that he was transferred to the U.S. Air Force Hospital in Okinawa and subsequently to the U.S. Navy Hospital, Quantico, VA, and the Veterans Administration Medical Center, St. Petersburg, FL, for treatment.

3.  The applicant did not provide any additional documentary evidence 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 records show he enlisted in the Regular Army for a period of 3 years on 6 February 1968.  He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 55B (Ammunition Specialist).  He was honorably separated from active duty on temporary records and his affidavit in the rank of sergeant/E-5 on 30 October 1970 and was transferred to the U.S. Army Reserve Control Group (Annual Training).

3.  The applicant’s records show he served in the Republic of Vietnam from on or about 23 July 1968 to on or about 23 August 1969 and was assigned to the 46th Ordnance Company.  He also served in Vietnam from on or about 7 December 1969 to on or about 20 October 1970.  He was assigned to the 571st Ordnance Company.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), of the applicant’s 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 Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and two overseas service bars. 
Item 24 does not show award of the Purple Heart.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) contains no 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.  On 14 September 1970, the applicant was injured in the Republic of Vietnam following a grenade explosion.  He was initially treated in a field hospital and was transferred to the 95th Evacuation Hospital for further treatment.  He was then transferred to the U.S. Army Hospital, Okinawa, and back to the United States for further hospitalization and/or treatment.  His record contains several medical documents related to an injury caused by a grenade explosion as follows:

	a.  Standard Form 502 (Narrative Summary), dated 17 September 1970, shows he was injured with fragment wound on 14 September 1970 and that his wound was debrided and placed in a lower-leg cast.  He was instructed to return to the clinic in 1 month to remove the cast;

	b.  Standard Form 502, dated 13 October 1970, shows he was injured in the Republic of Vietnam on 14 September 1970 following a grenade explosion.  He was transferred to the U.S. Army Hospital, Okinawa, for further treatment because of an infection to his left foot.  His final diagnosis was that he had an open fracture to his left third metatarsal; and

	c. Standard Form 502, dated 30 October 1970, shows he was admitted on 18 October 1970 and treated at the U.S. Army Hospital, Fort Gordon, GA, as a result of a blast injury to his left foot in the Republic of Vietnam.

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 for being wounded in action in the Republic of Vietnam.

2.  The available evidence shows the applicant suffered an injury to his foot as a result of a grenade explosion in the Republic of Vietnam on 14 September 1970 and that he was treated at various hospitals for this wound.  However, there is no clear evidence that the wound was caused by enemy action.  In fact, none of the medical forms prepared at the different hospitals indicates that his wound was a result of hostile action.  Additionally, his name is not shown on the Vietnam casualty roster.  Therefore, the available evidence is not sufficient to show the applicant was wounded as a result of hostile action.

3.  Notwithstanding the medical documents provided by the applicant, it is unclear what caused the grenade explosion that led to his injury.  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 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.  In the absence of documentation that conclusively show his grenade injury was a result of hostile action, 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.



      ___________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)                                         AR20090003577



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ABCMR Record of Proceedings (cont)                                         AR20090003577



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