IN THE CASE OF:	  

		BOARD DATE:	       6 OCTOBER 2009

		DOCKET NUMBER:  AR20090005581 

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 that he be awarded the Purple Heart and the Combat Infantryman Badge. 

2.  The applicant states that all veterans' agencies accept his Purple Heart Certificate. 

3.  The applicant provides copies of a Purple Heart Certificate, apparently issued at the 29th Evacuation Hospital in Japan; and discharge orders removing him from the Temporary Disability Retired List (TDRL).

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 on 14 February 1968, he completed training as a light weapons infantryman in military occupational specialty (MOS) 11B, and he was reassigned to Vietnam on 1 June 1968.  He was assigned to Company H, 3rd Battalion, 60th Infantry on 27 July 1968.

3.  He was medically evacuated to Japan on 28 August 1968 due to a comminuted compound fracture of his left foot, the result of an accidentally self-inflicted gunshot wound.  

4.  The available records contain slightly different versions as follows:

   a.  A 17 February 1969 medical board report relates, "The patient stated that while on security duty and jumping a small canal, the patient's own weapon discharged, striking him in the left foot while on active duty in the Republic of Viet Nam…."
   
   b.  The 30 April 1969 line of duty report states, "PFC [applicant] and another Soldier were to set up an observation post two (2) to three (3) hundred meters from the compound.  Shortly after moving out, a shot was heard.  When troops arrived on the scene they were informed that [applicant's] weapon discharged and hit him in the foot while jumping a small canal.  Due to the date of the accident and the rotation of personnel, statements from witnesses cannot be obtained at this unit.  EM was taken to 3rd Surgical Hospital, but at this time they have no record of EM."
   
   c.  The applicant's signed 30 June 1969 self-authored statement relates that "On 2 Sep 68 [sic] I was on patrol in RVN [Republic of Vietnam].  I was walking on the edge of a canal, when my left foot slipped off the edge of the canal into a hole.  I heard a shot and I was beginning to black-out when one of my buddies pulled me out of the hole and called for a medic.  When he pulled me out I saw my boot was shot up and that my foot was bleeding.  I asked him what happened.  He said that my weapon had hit the side of the hole and had discharged when I fell, hitting me in the foot."   

5.  The final determination that his injury had occurred in the line of duty was made on 15 July 1969.  On 22 July 1969 the applicant was placed on the TDRL.  He was permanently retired due to disability on 1 June 1972.

6.  Block 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) lists his awards as the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, and the Good Conduct Medal.  The Purple Heart and the Combat Infantryman Badge are not listed as authorized awards.
7.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) is blank and item 41 (Awards and Decorations) lists only the Expert Marksmanship Qualification Badge with Rifle Bar, Marksman Marksmanship Qualification Badge with Automatic Rifle Bar, and the Vietnam Service Medal.

8.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for the Purple Heart or the Combat Infantryman Badge pertaining to the applicant.  

9.  A review of the Vietnam Casualty Listing does not confirm that the applicant was wounded while in action against the enemy or as a result of enemy action.

10.  There is no available evidence that any enemy contact or action was involved in the applicant's accidental injury and none that he actually served in action against the enemy at any other time.

11.  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.  

12.  The regulation further provides, in pertinent part, that the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry MOS.  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  Additionally, Appendix V of USARV [U.S. Army, Vietnam] Regulation 672-1 (Awards and Decorations) provides that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11D, 11F, 11G, or 11H.

13.  The Purple Heart Certificate submitted by the applicant indicates that the Commanding Officer, 29th Evacuation Hospital made the award on 5 September 1968.






DISCUSSION AND CONCLUSIONS:

1.   The applicant states that all Veterans' agencies accept his Purple Heart Certificate. 

2.  The applicant's wounding was determined to be an accident.  There was not and there is not any indication of enemy involvement in this incident.  

3.  Awards of the Purple Heart are made by general orders.  No orders are available in this case.  The applicant's Purple Heart Certificate is noted; however, an award certificate, in and of itself, is insufficient evidence for changing his DD Form 214.

4.  Unfortunately there is no available evidence that the applicant served in combat or was awarded the Combat Infantryman Badge.     

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:

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.  



      __________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)                                         AR20090005581



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ABCMR Record of Proceedings (cont)                                         AR20090005581



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