BOARD DATE:	  8 December 2009

		DOCKET NUMBER:  AR20090011279 


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 correction of his military records to show that he was awarded the Purple Heart for wounds received in the Republic of Vietnam.

2.  The applicant states that he should be awarded the Purple Heart for wounds received in action on 21 June 1969. 

3.  The applicant provides, in support of his application, copies of orders and certificate awarding him the Bronze Star Medal for heroism on 21 June 1969. 

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.  On 20 March 1968, the applicant was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  On 17 August 1968, the applicant was enrolled in the Noncommissioned Officer Candidate Course at Fort Benning, Georgia.  

4.  On 12 November 1968, the applicant was promoted to sergeant, pay 
grade E-5.  He subsequently departed Fort Benning for additional training at Fort Ord, California, where he was enrolled in the Combat Leadership Course.

5.  On 20 March 1969, the applicant was assigned for duty as a team leader with C Company, 5th Battalion, 60th Infantry Regiment, in the Republic of Vietnam.

6.  General Orders Number 7696, 9th Infantry Division, dated 27 June 1969, awarded the applicant the Army Commendation Medal with “V” Device for heroic actions on 5 June 1969.  This order shows that while assigned as a squad leader with C Company, 5th Battalion, 60th Infantry Regiment, during a night ambush patrol the applicant distinguished himself.  He volunteered for the hazardous assignment of initiating an ambush on enemy troops.  He exposed himself to enemy fire and was instrumental in routing the hostile force.  The citation does not state or otherwise indicate he was wounded during this action.

7.  General Orders Number 9442, 9th Infantry Division, dated 9 July 1969, awarded the applicant the Bronze Star Medal with “V” Device for heroic actions on 21 June 1969.  The applicant disregarded his personal safety and led an assault on enemy positions, taking up an exposed position from which to return fire and to direct his men.  During the conflict, he repeatedly rushed to the aid of the wounded and evacuated them from the area.  The citation does not state or otherwise indicate he was wounded during this action.

8.  On 30 July 1969, the applicant was reassigned as a patient to the Medical Holding Company, Letterman General Hospital, San Francisco, California.

9.  A line of duty determination, dated 11 December 1969, states that the applicant was accidently shot by a fellow Soldier in the Republic of Vietnam on 21 June 1969.

10.  On 10 February 1970, the applicant was retired and placed on the Temporary Disability Retired List (TDRL).  He had attained the rank of sergeant, pay grade E-5, and had completed 1 year, 10 months, and 21 days of creditable active service.
11.  Effective 30 November 1971, the applicant was removed from the TDRL and discharged with severance pay based on a physical disability rated at 20 percent.

12.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 lists his awards as the Army Commendation Medal with “V” Device, Combat Infantryman Badge, Vietnam Service Medal, Vietnam Campaign Medal with 1960 Device, National Defense Service Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  It does not show award of the Purple Heart.

13.  The applicant’s name is not listed on the Vietnam Casualty Roster.

14.  Item 40 (Wounds) of the applicant’s Enlisted Qualification Record (DA Form 20) is blank.  Item 41 (Awards and Decorations) of this same form does not show award of the Purple Heart.

15.  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 awarding the applicant the Purple Heart.

16.  Army Regulation 600-8-22 (Military Awards) provides, 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 the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.  

17.  Army Regulation 600-8-22 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 applicant contends that he was wounded in action on 21 June 1969 and should be awarded the Purple Heart.

2.  The evidence of record clearly shows the applicant was accidently shot by a fellow Soldier.  However, the evidence does not indicate that this shooting occurred during battle while the Soldier was attempting to shoot the enemy. 

3.  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 the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090011279



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ABCMR Record of Proceedings (cont)                                         AR20090011279



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