IN THE CASE OF:	  

		BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090011273 


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 it [his injury] happened during combat operations in the Republic of Vietnam while everyone was trying to stay alive, but he was not recommended for this award.

3.  The applicant provides an unsigned statement, dated 22 October 1974, from a comrade-in-arms 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 8 April 1969.  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 specialist four/E-4 on 7 April 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 7 September 1969 to on or about 6 September 1970.  He was assigned to Company D, 2nd Battalion, 14th Infantry, 25th Infantry Division.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded the National Defense Service Medal, the Vietnam Service Medal with three bronze service stars, the Republic of Vietnam Campaign Medal with Device (1960), the Combat Infantryman Badge, the Bronze Star Medal, and the Air Medal.  Item 24 does not show award of the Purple Heart.

5.  A contemporaneous DA Form 20 (Enlisted Qualification Record), which would have shown combat wounds in item 40 (Wounds), is not available for review with this case.  A subsequent DA Form 20 is available; however, page 4 of this form, which would have included item 40 as well as item 41 (Awards and Decorations), is not available for review with this case.

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

7.  The applicant's available medical records do not indicate he sustained a combat wound/injury or that he was treated for any combat wound/injury.

8.  During the processing of this case, a member for 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 produced copies of orders awarding the applicant the Bronze Star Medal and the Air Medal but failed to reveal any Purple Heart orders on file for the applicant.

9.  The applicant submitted a copy of an unsigned statement, dated 22 October 1974, from a former unit member in which the author states the following:

	a.  The author served with the applicant in Vietnam as his squad leader, platoon sergeant, platoon leader, and first sergeant for approximately 1 year from September 1969 to September 1970 and last saw him during outprocessing at Bien Hoa.

	b.  The incident happened sometime in July or August 1970 at Forward Support Base (FSB) Byrd in a rubber plantation near Dau Tieng.  The area was heavily infested with well-equipped enemy troops and that despite the enemy's earlier defeat and despite the harassing fire they constantly received, they were still capable of mounting large scale offensive operations.

	c.  On the night the applicant received his combat injury, the author was sitting with him and other Soldiers on top of a bunker with rifles all around the bunkers and that the author's rifle had a fixed bayonet.  He remembers that everyone got up in a hurry and in the process the applicant's leg went down on a bayonet injuring him with a deep puncture wound.   The author helped the applicant remove the bayonet.  The author also remembers that the enemy had been shelling them with artillery/rocket fire and that they were exposed to sniper fire, which could explain why everyone scrambled from the bunker.  At any rate, firing was occurring which led everyone to think an enemy attack was imminent.

	d.  The applicant's injury was caused as a result of enemy activity in the area and in the haste to respond to this threat, the applicant was injured while moving from the bunker.

10.  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.  This regulation also provides, in pertinent part, 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 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 awarding this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  While the fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, it is not sole justification for the award.

2.  Additionally, "friendly fire" in the "heat of battle" also qualifies a member of award of the Purple Heart as long as the "friendly" projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.  In this case, there is no evidence that an enemy incoming round or an explosion caused him to fall on the bayonet and there is no evidence that the bayonet that allegedly caused his wound was being used at the time of injury in the heat of battle.

3.  The applicant's service in the Republic of Vietnam is not in question.  Additionally, the sincerity of the applicant and that of the former unit member are also not in question.  However, there is no evidence in the applicant's service personnel records that shows he was wounded or injured as a result of hostile action and/or treated for such wounds.  The statement submitted by the applicant's former unit member is insufficient by itself to support an award of the Purple Heart in this case.

4.  Absent evidence which conclusively shows that the applicant sustained wounds or injuries as a result of hostile action or as a result of "friendly fire" in the "heat of battle," that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is insufficient basis for awarding him 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)                                         AR20090011273



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ABCMR Record of Proceedings (cont)                                         AR20090011273



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