IN THE CASE OF:	  

		BOARD DATE:	       22 September 2009

		DOCKET NUMBER:  AR20090007419 


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 that he suffered injuries in the Republic of Vietnam but was never given the Purple Heart.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 25 March 1971; a copy of the Western Union Telegram, dated 20 December 1969; and two statements of support from former unit members, in support of his request.

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 and entered active duty on 26 March 1969.  He completed basic combat training and advanced individual training and was initially awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman) on 1 August 1969 and was later awarded MOS 94B (Cook) on 10 July 1970.  He was honorably released from active duty in the rank/grade of specialist five (SP5)/E-5 on 25 March 1971 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 23 August 1969 to on or about 22 August 1970.  He was assigned to Company C, 3rd Battalion 22nd Infantry, 25th Infantry Division as an infantryman, from on or about 4 September 1969 to on or about 10 May 1970, and as a cook, from on or about 10 May 1970 to on or about 18 August 1970. 

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 Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), two overseas service bars, the Combat Infantryman Badge, the Army Commendation Medal (1st Oak Leaf Cluster), the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-14).  Item 24 does not show award of the Purple Heart.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) contains no entry.

6.  The applicant's name is not shown on the Vietnam casualty roster.

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

8.  On 16 December 1969, the applicant was injured in the Republic of Vietnam following a claymore mine explosion.  He was setting up a claymore mine at a night defensive position when the blasting cap detonated for unknown reason.  He suffered multiple fragment wounds to his hand and was admitted to the 45th Surgical Hospital for treatment.  He was ultimately returned to duty on 24 December 1969.



9.  On 20 December 1969, a western Union Telegram was sent to the applicant's mother in Bradford, OH, informing her that the applicant had been injured by fragments on 16 December 1969 while at a night defensive position when an explosive device accidently detonated.  He received wounds to his right hand. 

10.  The applicant submitted two statements from two former unit members who attest that they both served with the applicant in the same unit and that they all saw significant combat.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart for being wounded in the Republic of Vietnam.

2.  The available evidence shows the applicant suffered an injury to his hand as a result of an accidental claymore mine detonation on 16 December 1969 in the Republic of Vietnam.  However, there is no evidence that the explosion and/or the wound was caused by enemy action.  In fact, the Western Union Telegram clearly states the injury was accidental.  Additionally, his name is not shown on the Vietnam casualty roster.  Therefore, the available evidence is not sufficient to show the applicant was wounded as a result of hostile action.

3.  Notwithstanding the statement submitted by the applicant's former unit members, the authors did not address the accidental detonation or the Purple Heart.  In any case, 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.  When contemplating an award of this decoration, the key issue 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.  In the absence of documentation that conclusively show his claymore mine accident was a result of hostile action, there is insufficient 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 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)                                         AR20090007419



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ABCMR Record of Proceedings (cont)                                         AR20090007419



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