IN THE CASE OF:
BOARD DATE: 9 April 2009
DOCKET NUMBER: AR20090005587
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, as the mother of a deceased former service member (FSM), through her Congressional representative, reconsideration of the Army Board for Correction of Military Records (ABCMR) denial of her request to posthumously award her son the Purple Heart.
2. The applicant states the death of the FSM was a result of friendly fire.
3. The applicant provides, in support of her request, copies of the previous ABCMR decision, all documents that were submitted with her original application, and a letter from her Congressional representative.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080018845, on 3 March 2009.
2. The applicant's Congressional representative request that the applicant's request be given every consideration based on the friendly fire provisions of the criteria for award of the Purple Heart is new argument which requires that her case be reconsidered by the ABCMR.
3. A DA Form 52-2 (Statement of Casualty), dated 19 August 1966, stated the FSM's casualty status as: "DIED 15 August 1966 in Vietnam as the result of cardiac arrest due to gunshot wound to the abdomen incurred on 11 August 1966 when he was hit by small arms fire, fired by friendly forces."
4. A DD Form 1300 (Report of Casualty), 31 October 1966, reported the FSM's casualty status as non-battle and: "DIED 15 August 1966 in Vietnam as the result of cardiac arrest due to a gunshot wound to the abdomen incurred on the night of 11 August 1966 when while moving about the company position in the darkness he was challenged by a sentry who then fired on him before he could make his identity known."
5. Title 10 United States Code (USC), Section 1129 (Purple Heart: members killed or wounded in action by friendly fire) provides that (a) for purposes of the award of the Purple Heart, the Secretary concerned shall treat a member of the armed forces described in subsection (b) 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. (b) 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.
6. In the original findings the ABCMR determined there was no evidence of record showing the friendly fire was in the heat of battle. The ABCMR found that due to the absence of evidence to show the guard position was under attack at the time the FSM was wounded, there was insufficient evidence upon which to base award of the Purple Heart.
DISCUSSION AND CONCLUSIONS:
1. The DA Form 52-2 and the DD Form 1300 both show the FSM was hit by small arms fire, fired by friendly forces. However, the DD Form 1300 shows the FSM was moving about the company position when he was challenged by a sentry and fired upon before he could identify himself.
2. In order to meet the criteria for award of the Purple Heart under the provisions established in Title 10 USC for friendly fire, the FSM would have had to have been directly engaged in armed conflict with the enemy. There is no evidence the FSM was directly engaged in armed conflict at the time of the incident.
3. Regrettably, in view of the above, there is sufficient 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 to amend the decision of the ABCMR set forth in Docket Number AR20080018845, dated 3 March 2009.
_______ _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.
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