BOARD DATE:	  30 July 2009

		DOCKET NUMBER:  AR20090004548 


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 correction of his records to show award of the Purple Heart.

2.  The applicant states, in effect, while serving in the Republic of Vietnam (RVN), on 20 June 1967, he sustained fragment wounds to his back and right foot when the enemy blew up an ammunition dump.

3.  The applicant provides, in support of his application, copies of two DD Forms 8-275-3 (Clinical Record Cover Sheets), dated 22 June and 19 July 1967, and a Standard Form (SF) 89 (Report of Medical History), dated 22 July 1969.

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 enlisted in the U.S. Army for a period of 3 years and entered active duty on 6 September 1966.  Upon completion of training, he was awarded military occupational specialty (MOS) 61E (Amphibian Engineer).

3.  The applicant's military personnel records contain a DA Form 20 (Enlisted Qualification Record).

   a.  Item 31 (Foreign Service) shows he served in the U.S. Army Pacific (USARPAC) in the RVN from 27 March 1967 through 22 July 1968.

   b  Item 38 (Record of Assignments), in pertinent part, shows he was assigned to the 14th Transportation Platoon (USARPAC, RVN) in duty MOS 44K2O (Marine Hull Repairman) from 2 April 1967 to 22 July 1968.

   c.  Item 40 (Wounds) is blank.
   
   d.  Item 41 (Awards and Decorations) fails to show he was authorized award of the Purple Heart.

4.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he entered active duty this period on 6 September 1966, was honorably released from active duty on 5 September 1969 based on expiration of term or service, and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining military service obligation.  At the time he had completed 3 years of net active service and 1 year, 3 months, and 26 days of foreign service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), and Expert Marksmanship Qualification Badge with (M-14) Rifle Bar.

5.  There is no documentation in the applicant’s military personnel records that shows he was wounded or treated for wounds as a result of hostile action.  In addition, a review of the Vietnam Casualty Roster confirmed that the applicant’s name is not listed on the roster.

6.  A review of the applicant’s military personnel records revealed that there are no orders in the applicant’s records that show he was awarded the Purple Heart.

7.  A search of the U.S. Army Human Resources Command, Awards and Decorations Computer Assisted Retrieval System, for the Vietnam Conflict failed to produce orders showing the applicant was awarded the Purple Heart.

8.  In support of his application, the applicant provides the following documents.

   a.  Two Clinical Record Cover Sheets, dated 22 June and 19 July 1967, that show, in pertinent part, the applicant received medical treatment at the
85th Evacuation Hospital (RVN) and 6th Convalescent Center (RVN), respectively, for a fragment wound of his right foot that was accidentally incurred (AI) when an ammunition dump blew up at Duc Pho (RVN) at 1900 hours, on
20 June 1967.

   b.  A Report of Medical History, dated 22 July 1969, that the applicant completed during his separation medical examination, shows in Item 17 (Statement of Examinee’s Present Health in Own Words) the applicant entered "good."  In response to Item 32 (Have You Ever Been A Patient) and Item 33 (Have You Ever Had Any Illness or Injury Other Than Those Already Noted) the applicant placed an "X" in the "Yes" column for both of these items and also entered the following remarks on the form, "31 (sic).  age 21, removed fragment from right heel" and "33.  20 June 67, Vietnam, fragment in heel of right foot and back."  Item 39 (Physicians Summary and Elaboration of All Pertinent Data), in pertinent part, contains the entry, "31.  Frag[ment] wound [right] heel - no residual."  This document also shows the applicant and examining physician each placed their signature on the document.

9.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  This Army regulation states, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action.  It provides that 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.  This regulation also provides examples of injuries or wounds which clearly do not qualify for award of the Purple Heart and cites, in pertinent part, accidents involving explosive, aircraft, vehicular, and other accidental wounds or injuries not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show award of the Purple Heart because he sustained fragment wounds to his back and right foot when the enemy blew up an ammunition dump in the RVN on 20 June 1967.

2.  The applicant’s claim was carefully considered.  There is no evidence that the injury the applicant sustained on 20 June 1967 was the result of hostile action.  A review of the documents the applicant provides confirms that he received medical treatment at the 85th Evacuation Hospital (RVN) and 6th Convalescent Center (RVN) for a fragment wound of his right foot that was accidentally incurred [emphasis added] on 20 June 1967 when an ammunition dump blew up at Duc Pho (RVN).  In this regard, the evidence of record is clear, in that, injuries or wounds sustained as a result of accidents do not qualify for award of the Purple Heart.

3.  There is no evidence in the applicant’s military personnel records that shows he was wounded as a result of hostile action; his DA Form 20 does not list the Purple Heart in item 41; the applicant's name is not listed on the Vietnam Casualty Roster; and there are no orders in the applicant’s military personnel records or in the U.S. Army Human Resources Command, Awards and Decorations Computer Assisted Retrieval System, that show the applicant was awarded the Purple Heart.  In addition, there is no evidence in the applicant’s military service records that shows he was wounded as a result of hostile action, that such wound required treatment, or that the medical treatment was made a matter of official record.  Therefore, in view of all of the foregoing, the applicant is not entitled to award of the Purple Heart in this case.

4.  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:

1.  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.



2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   __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)                                         AR20090004548



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ABCMR Record of Proceedings (cont)                                         AR20090004548



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