BOARD DATE:	  11 August 2009

		DOCKET NUMBER:  AR20090005429 


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, in effect, that he is entitled to this award.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a copy of a statement, dated 1 January 2009, from whom the applicant identifies as the attending medic at the time.  

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 was inducted into the Army of the United States on 19 June 1968.  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 sergeant/E-5 on 18 March 1970 and transferred to the U.S. Army Reserve Control Group (Annual Training) for completion of his Reserve obligation.  

3.  The applicant’s records show he served in the Republic of Vietnam from on or about 22 November 1968 to on or about 21 November 1969.  He was assigned to Company A, 3rd Battalion, 39th Infantry, 9th Infantry Division. 

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 shows he was awarded the National Defense Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Combat Infantryman Badge, the Army Commendation Medal 2nd Oak Leaf Cluster and with "V" Device, the Vietnam Service Medal, the Expert Marksmanship Qualification Badge with Rifle (M-16) and Machinegun (M-60) Bars, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), the Bronze Star Medal, and the Air Medal.  Item 24 does not show award of the Purple Heart.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) is blank.

6.  The applicant's name is not shown on the Vietnam Casualty Roster.

7.  There are no general orders in his records that show he was awarded the Purple Heart.

8.  During the processing of this case, a member of the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System maintained by the Military Awards Branch of the United States Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any Purple Heart orders on file for the applicant.  

9.  The applicant's medical records are not available for review with this case; however, his records contain a DA Form 3082-R (Statement of Medical 

Condition), dated 18 March 1970, in which he stated he underwent a physical examination on 27 February 1970 and that there had been no change in his medical condition.

10.  The applicant submitted a statement, dated 1 January 2009, from an individual described as the unit medic.  The medic states that on 1 January 1969 the platoon and company were involved in an operation in South Vietnam.  As they were moving along the area of operations, along a winding river, the Soldier ahead of the applicant tripped a booby trap in the form of a white phosphorous grenade.  The explosion wounded five or six Soldiers who were evacuated.  However, the applicant, who was the lead platoon radio and telephone operator (RTO), remained in the field with the rest of the platoon despite being wounded.  That night, the unit returned to base camp, but the applicant did not go to the battalion aid station or medical unit.  Instead, the author, as the platoon combat medic, went to the company aid station and retrieved a scalpel, scraped the white phosphorous off the applicant’s face and cleaned it, then returned the scalpel to the medical aid bunker.

11.  White Phosphorus, known as Willy Pete, is used for signaling, screening, and incendiary purposes.  It spontaneously ignites when exposed to air and is oxidized rapidly, producing extreme heat.  This chemical reaction continues until either all the material is consumed or the element is deprived of oxygen.  White phosphorus results in painful chemical burn injuries.  The resultant burn typically appears as a necrotic area with a yellowish color.  White phosphorus is highly lipid soluble and, as such, is believed to have rapid dermal penetration.  Once particles are embedded under the skin, the wound must be immerse in water or packed with wet cloth to halt combustion.  Then the white phosphorus must be picked out or squeezed out.  The white phosphorus particles will reignite spontaneously if allowed to dry. If Soldiers are hit by pieces of white phosphorus, it could burn right down to the bone.  Burns usually are limited to areas of exposed skin (upper extremities, face).  Burns frequently are second and third degree because of the rapid ignition properties of white phosphorus.

12.  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.  

3.  The criteria for award of the Purple Heart require that it will be awarded to Soldiers for wounds or injuries received as a result of enemy action.  The wounds must have required treatment by medical personnel and made a matter of official record.  In this case, the applicant’s name is not shown on the Vietnam casualty roster; his DA Form 20 does not indicate any combat wounds; his record is void of any orders that show he was awarded the Purple Heart; and his available medical records do not indicate he was wounded and/or injured as a result of hostile action.  

4.  The platoon medic’s statement submitted by the applicant was made more than 40 years after the incident in question and, as such, certain facts may have become less clear, or may require more elaboration.  If the applicant had been struck in the face by white phosphorus particles, he would most probably have required immediate medical treatment for second and third degree chemical burns.  Given the limited information provided by the platoon medic, it seems unlikely the applicant could have waited until his return to base camp to have the white phosphorus particles scraped off his face.

5.  Notwithstanding the statement submitted by the applicant, in the absence of additional documentation that conclusively shows 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. 

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

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)                                         AR20090005429



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ABCMR Record of Proceedings (cont)                                         AR20090005429



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