IN THE CASE OF:	

		BOARD DATE:	  4 February 2010


		DOCKET NUMBER:  AR20090011473 


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, in effect, that he be awarded the Purple Heart and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Bronze Star Medal and the Combat Infantryman Badge.

2.  The applicant states he should have been awarded the Purple Heart for receiving a gunshot wound to the head and burns from flares and mortar fire on 25 December 1968.  He also states that the Bronze Star Medal and Combat Infantryman Badge awarded to him subsequent to his separation do not appear on his DD Form 214.

3.  The applicant provides a copy of his DD Form 214; a DA Form 8-118 (Medical Board Proceedings), dated 28 March 1969; and a DA Form 1361 (Recommended Findings of Physical Evaluation Board [PEB] (Informal Hearing)), dated 9 April 1969, in support of this application.

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 military records show that he was inducted into the Army of the United States on 8 July 1968.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He departed for the Republic of Vietnam on
3 December 1968 and he was assigned to Company A, 2nd Battalion,
5th Cavalry Regiment, 1st Air Cavalry Division as a Rifleman in duty MOS 11B on 9 December 1968.  He was placed on the seriously ill list on 25 December 1968 at the 24th Evacuation Hospital in Vietnam.  He was transferred to the 106th General Hospital in Japan on 9 January 1969.  He returned to the continental United States on 24 January 1969 and he was assigned to the Medical Holding Company, Walter Reed General Hospital in Washington, DC.  On 30 April 1969, he was permanently retired by reason of physical disability.  The DD Form 214 that he was issued at the time of his retirement shows in item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) the National Defense Service Medal, Vietnam Service Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

3.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) does not contain any entries that indicate he was wounded or injured as a result of hostile action.  Item 41 (Awards and Decorations) of this same document also does not show that he was awarded the Purple Heart.  There are no orders in his military records awarding him the Purple Heart

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

5.  The applicant's military records contained a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 6 February 1969, which stated in item 10 (Nature and Extent of Injury) that the applicant sustained a gunshot wound to the right side of his head; however, item 30 of this document shows that he was wounded on the right side of his head from a parachute hand flare which ignited from a burning sump in the Forward Operations Base.  A continuation of item 30 of this document revealed that a hand flare was apparently unknowingly placed in a C-rations box, and during a police call of the area the box was tossed into the sump by some individual who did not check the contents of the box.  A fourth endorsement to the DA Form 2173 confirmed that item 30 of the DA Form 2173 was correct and that item 10 of this document was incorrect.

6.  Item 24 of the applicant's DD Form 214 does not show award of the Bronze Star Medal.  There are no general orders in the applicant’s military records which awarded him the Bronze Star Medal and the applicant failed to provide any orders awarding him the Bronze Star Medal.

7.  Item 24 of the applicant's DD Form 214 also does not show the award of the Combat Infantryman Badge.  There are no special orders in his military records which awarded him the Combat Infantryman Badge, and the applicant did not provide such orders.  Although his DA Form 20 shows that he served as a Rifleman in duty MOS 11B with Company A, 2nd Battalion, 5th Cavalry Regiment from 9 December 1968 until he was seriously injured on 25 December 1968, there is no evidence which conclusively shows that his unit participated in active ground combat during this period and that he actively participated in such ground combat with his unit.

8.  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 for the Purple Heart or the Bronze Star Medal pertaining to the applicant.

9.  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 been treated by a medical officer, and the medical treatment must have been made a matter of official records.  Each approved award of the Purple Heart must exhibit all of the following factors:  wound, injury, or death must have been the result of enemy or hostile act, international terrorist attack, or friendly fire; the wound or injury must have required treatment by medical officials; and the records of medical treatment must have been made a matter of official Army records.  This regulation also states that accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action are some examples of injuries or wounds which clearly do not justify award of the Purple Heart.

10.  Army Regulation 600-8-22 provides, in pertinent part, that the Bronze Star Medal is awarded to any person who distinguished himself or herself after
6 December 1941 by heroic or meritorious achievement or service, not involving 
participation in aerial flight, in connection with military operations against an armed enemy; or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party.  As with all personal decorations, formal recommendations, approval through the chain of command and announcement in orders is required.

11.  Army Regulation 600-8-22 provides, in pertinent part, that the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer personnel who have an infantry MOS.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.  Battle or campaign participation credit alone is not sufficient; the unit must have been in active ground combat with the enemy during the period.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart and that his DD Form 214 should be corrected to show the award of the Bronze Star Medal and the Combat Infantryman Badge.

2.  The applicant's contention that he received a gunshot wound to the head and burns from flares and mortar fire on 25 December 1968 was noted.  However, the evidence of record clearly shows that the injuries he received on 
25 December 1968 were caused by a parachute hand flare which ignited from a burning sump after a flare was apparently unknowingly placed in a C-rations box and tossed into the sump by some individual who did not check the contents of the box.  As his injuries were the result of an accidental explosion not caused by enemy action, there is no basis for awarding him the Purple Heart for the injuries he received on 25 December 1968 in this case.

3.  The sincerity of the applicant's claim that he was awarded the Bronze Star Medal is not in question.  However, all awards of the Bronze Star Medal must be announced in official orders, which the applicant did not provide and which are not in his military records.  Regrettably, in view of the foregoing, there is insufficient basis for correcting his DD Form 214 to show the award of the Bronze Star Medal in this case.

4.  The applicant's claim that he was awarded the Combat Infantryman Badge was also noted.  Although the applicant possessed and served in an infantry MOS with an infantry unit of brigade, regimental or smaller size during from 
9 December 1968 until he was seriously injured on 25 December 1968, there is 
no evidence in his military records, and the applicant failed to provide any evidence which shows that his infantry unit engaged in active ground combat and that he actively participated in ground combat with his unit.  Regrettably, absent orders which officially awarded him the Combat Infantryman Badge or evidence which conclusively shows that he actively participated in ground combat with his infantry unit in Vietnam, there is an insufficient basis for awarding him the Combat Infantryman Badge or correcting his DD Form 214 to show the award of the Combat Infantryman Badge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.



      __________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)                                         AR20090011473



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ABCMR Record of Proceedings (cont)                                         AR20090011473



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