IN THE CASE OF:	  

		BOARD DATE:	       25 AUGUST 2009

		DOCKET NUMBER:  AR20090003607


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 he slipped and fell against a hot mortar tube in Vietnam.

3.  The applicant provides a personal statement, a letter of support from a former comrade who was the company medic, a letter of support from a comrade who was his former squad leader, and a letter of support from a former comrade who was also a squad member in his unit.

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 was inducted into the Army of the United States for 2 years on 21 December 1965.  He completed Basic Combat Training and Advanced Individual Training at Fort Lewis, WA and was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).

3.  Upon completion of his training, the applicant was assigned to Company C, 2nd Battalion, 22nd Infantry, 4th Infantry Division at Fort Lewis.  When his unit was transferred to Vietnam, he served there from on or about 22 September 1966 to on or about 21 September 1967.

4.  The applicant returned to the United States and was separated at Oakland (CA) Army Base on 23 September 1967.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he had 1 year, 9 months, and 3 days of creditable service.  It also shows he was awarded the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Combat Infantryman Badge, and Expert Marksmanship Qualification Badge with Rifle Bars (M-14 and M-16).  It does not show award of the Purple Heart.

5.  The applicant’s DA Form 20 (Enlisted Qualification Record) was available for review.  It does not show award of the Purple Heart in Item 41 (Awards and Decorations).  It does not reflect any wounds in Item 40 (Wounds).  Item 38 (Record of Assignments) does not show he was ever medically evacuated for wounds.

6.  The applicant’s name does not appear on the Vietnam Casualty Roster.

7.  During the processing of this case, a member for the Board’s 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 orders for award the Purple Heart for the applicant.

8.  There are no medical records available for review with this case.

9.  The applicant provides three letters in support of his request.

	a.  A former specialist five, combat medic states he treated the applicant in the field for severe burns to his upper arm and shoulder.  He states the applicant, during a fire mission, removed a dud round from an 81mm mortar and threw it in a sump.  Returning to the mortar, he then slipped and fell against the hot tube.

	b.  A former Sergeant, Squad Leader states the applicant burned his shoulder in mid-January 1967 when he slipped and fell against a hot mortar tube.

	c.  A former squad member states the squad had a misfire and the applicant disposed of the round.  Upon returning to the personnel carrier, he slipped or tripped hitting his back against the hot tube.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart (PH) is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that:  (1) the wound was the result of hostile action; (2) the wound required medical treatment; and 
(3) the medical treatment was made a matter of official record.  The regulation also provides:

   a.  The Purple Heart was established by General George Washington at Newburgh, New York, on 7 August 1782, during the Revolutionary War. It was reestablished by the President of the United States per War Department General Orders 3, 1932 and is currently awarded pursuant to Executive Order 11016 , 25 April 1962; Executive Order 12464 , 23 February 1984; Public Law 98-525 , 19 October 1984 amended by Public Law 100-48 , 1 June 19871; Public Law 103-160 , 30 November 1993; Public Law 104-106 , 10 February 1996; and Public Law 105-85 , 18 November 1997.

   b.  The Purple Heart is awarded in the name of the President of the United States and per Title 10, U.S. Code, section 1131, effective 19 May 1998, is limited to members of the Armed Forces of the United States who, while serving under component authority in any capacity with one of the U.S. Armed Services after 5 April 1917, has been wounded or killed, or who has died or may hereafter die after being wounded:

		(1) In any action against an enemy of the United States.

		(2) In any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged.

		(3) While serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party.

		(4) As the result of an act of any such enemy of opposing Armed Forces. 

   (5) As the result of an act of any hostile foreign force. 

		(6) After 28 March 1973, as the result of an international terrorist attack against the United States or a foreign nation friendly to the United States, recognized as such an attack by the Secretary of Army, or jointly by the Secretaries of the separate armed services concerned if persons from more than one service are wounded in the attack.

		(7) After 28 March 1973, as the result of military operations while serving outside the territory of the United States as part of a peacekeeping force.

		(8) Members killed or wounded in action by friendly fire.  In accordance with Title 10, U.S. Code, section 1129 for award of the Purple Heart, the Secretary of the Army will treat a member of the Armed Forces described in ( a ), below, in the same manner as a member who is killed or wounded in action as the result of an act of an enemy of the United States.

			(a) A member described in this subsection is a member who is 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, unless (in the case of a wound) the wound is the result of willful misconduct of the member.

			(b) This section applies to members of the Armed Forces who are killed or wounded on or after 7 December 1941.  In the case of a member killed or wounded, as described in paragraph 2-8b above, on or after 7 December 1941 and before 30 November 1993, the Secretary of the Army will award the Purple Heart under provisions of paragraph 2-8a above in each case which is known to the Secretary before such date or for which an application is made to the Secretary in such manner as the Secretary requires.

	c.  While clearly an individual decoration, 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.

	d.  A wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions listed above.  A physical lesion is not required, however, the wound for which the award is made 
must have required treatment by medical personnel and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.

	e.  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.

	f.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:

		(1) Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action.

		(2) Injury caused by enemy placed mine or trap. 

		(3) Injury caused by enemy released chemical, biological, or nuclear agent. 

		(4) Injury caused by vehicle or aircraft accident resulting from enemy fire. 

		(5) Concussion injuries caused as a result of enemy generated explosions.

	g.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: 

		(1) Frostbite or trench foot injuries. 

		(2) Heat stroke. 

		(3) Food poisoning not caused by enemy agents. 

		(4) Chemical, biological, or nuclear agents not released by the enemy. 

		(5) Battle fatigue. 

   (6) Disease not directly caused by enemy agents. 

		(7) Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action. 

		(8) Self-inflicted wounds, except when in the heat of battle and not involving gross negligence. 

		(9) Post traumatic stress disorders.

		(10) Jump injuries not caused by enemy action. 
	h.  It is not intended that such a strict interpretation of the requirement for the wound or injury to be caused by direct result of hostile action be taken that it would preclude the award being made to deserving personnel.  Commanders must also take into consideration the circumstances surrounding an injury, even if it appears to meet the criteria.  Note the following examples:

		(1) In a case such as an individual injured while making a parachute landing from an aircraft that had been brought down by enemy fire; or, an individual injured as a result of a vehicle accident caused by enemy fire, the decision will be made in favor of the individual and the award will be made.

		(2) Individuals injured as a result of their own negligence; for example, driving or walking through an unauthorized area known to have been mined or placed off limits or searching for or picking up unexploded munitions as war souvenirs, will not be awarded the Purple Heart as they clearly were not injured as a result of enemy action, but rather by their own negligence. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests award of the Purple Heart.  The applicant states he fell against a hot mortar tube and burned his arm and shoulder.  He states the company medic treated him in the field by applying ointment.

2.  Accepting that the applicant’s burn was treated in the field and not in a medical facility, there apparently was no annotation of his treatment in his medical records.  A basic requirement for award of the Purple Heart is that the treatment be made a matter of official record [emphasis added].

3.  Because the applicant’s wound treatment was not done in a medical facility and not made a matter of official record, his commander may not have had the opportunity to take into consideration the degree to which the enemy caused the injury.  While it may be true the applicant was participating in combat operations when he “slipped or tripped” against a hot mortar tube it is unclear how much that act was the result of enemy actions.

4.  There are no orders awarding the applicant the Purple Heart and his name does not appear on the Vietnam Casualty Roster.  The statements by his former comrades-in-arms have been considered; however, they are insufficient to overcome the absence of orders or casualty documentation.

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

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)                                         AR20090003607



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ABCMR Record of Proceedings (cont)                                         AR20090003607



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