IN THE CASE OF:	  

		BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090011065


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 his records be corrected to show award of the Purple Heart.

2.  The applicant states he was awarded the Purple Heart while recovering from his wounds aboard the U.S. Navy Hospital Ship, USS Sanctuary, off the coast of Vietnam.  He states he was wounded as a result of hostile action on 11 July 1967.

3.  The applicant provides:

	a.  a DA Form 8-118 (Medical Board Proceedings), dated 26 December 1967;

	b.  a 3-page Standard Form 502 (Narrative Summary), dated 15 November 1967; and

	c.  the second page of a 2-page Standard Form  88 (Report of Medical Examination).

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 for 2 years on 17 November 1966 and trained in military occupational specialty 13A1O (Cannoneer).  He was ordered to Vietnam.

3.  The applicant arrived in Vietnam on or about 23 April 1967 and was assigned to Battery C, 2nd Battalion, 94th Artillery.  In July 1967, the base camp was located at Dong Ha and the firing battery was located at Truc Khe.

4.  On 11 July 1967, the applicant was injured when an M4 electric blasting cap exploded in his left hand causing the traumatic amputation of his left thumb, index finger, and distal phalanx of his third finger.  The M4 is the detonator used to explode the M18A1 Claymore anti-personnel mine.

5.  The applicant was medically evacuated from Vietnam, underwent a medical evaluation board and physical evaluation board, and was permanently retired by reason of physical disability with a disability rating of 60 percent.

6.  The applicant's service record reveals the following:

	a.  there are no orders awarding him the Purple Heart;

	b.  his DA Form 20 (Enlisted Qualification Record) contains no entry in item 40 (Wounds) and no Purple Heart entry in item 41 (Awards and Decorations); and

	c.  his DD Form 214 does not list the Purple Heart as an authorized award.

7.  The applicant is not listed in the Vietnam casualty roster, nor were orders awarding him the Purple Heart found during a review of the Awards and Decorations Computer Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973, maintained by the Military Awards Branch of the U.S. Army Human Resources Command, Alexandria, VA.

8.  The DA Form 8-118 provided by the applicant, and also found in his service record, indicates in item 18 (Medical Conditions/Defects) that his injury was "incurred as a result of hostile action, 11 July 1967, when patient was setting a claymore mine when it went off in his hand."

9.  Army Regulation 600-8-22 (Military Awards) sets forth Department of the Army criteria, policy, and instructions concerning individual military awards, the Army Good Conduct Medal, service medals and service ribbons, combat and special skill badges and tabs, unit decorations, and trophies and similar devices awarded in recognition of accomplishments.  It states, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that:  (1) the wound was the result of hostile action, (2) the wound required medical treatment by military medical personnel, and (3) the medical treatment was made a matter of official record.  It further provides for award of the Purple Heart to individuals wounded or killed as a result of "friendly fire" in the "heat of battle" as long as the "friendly" projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is not listed on the Vietnam casualty roster, there are no orders awarding him the Purple Heart, and his service record does not indicate that he was wounded in any of the several areas where information concerning wounds received as a result of hostile action would be recorded.

2.  A statement in the applicant's DA Form 8-118 indicates he was injured "as a result of hostile action" when a Claymore mine went off in his hand.  Notwithstanding this statement, other documentation shows the applicant was injured by a blasting cap that detonated in his hand, not by a Claymore mine.  There is no evidence of record and the applicant does not explain the circumstances leading up to this injury.  Furthermore, there is insufficient evidence to show that this event occurred during contact with the enemy.  Therefore, by regulation, he is not entitled to the Purple Heart.

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)                                         AR20090011065



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ABCMR Record of Proceedings (cont)                                         AR20090011065



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