IN THE CASE OF:	 

		BOARD DATE:	  4 February 2010

		DOCKET NUMBER:  AR20090011963 


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 the award of the Purple Heart (PH).

2.  The applicant states he was wounded in Vietnam and he was never awarded a PH.  He further states that he was injured by friendly fire; however, it was in a combat zone during a combat situation.

3.  The applicant provides a self-authored statement, a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), two
DA Forms 1 (Morning Report), three DA Forms 305-3 (Personnel Roster – Enlisted), three DA Forms 8-274 (Medical Condition - Physical Profile Record), a copy of a Standard Form (SF) 504 (Clinical Record - History - Part I), a copy of an SF 502 (Clinical Record - Narrative Summary), a copy of a DA Form 8-275-3 (Clinical Record Cover Sheet), a copy of an SF 600, (Chronological Record of Medical Care), and a extract from the American War Library internet website pertaining to the eligibility criteria for the PH 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 record shows he enlisted in the Regular Army (RA) on 29 July 1963 for a period of 3 years.  He completed training and he was assigned military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  He served in the Republic of Vietnam (RVN) during the period 8 July 1965 through 25 June 1966.

3.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 does not show award of the Purple Heart.

4.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) contains the entry "Gunshot wound left thigh, 12 Sep 65" which was subsequently lined out.  Item 41 (Awards and Decorations) does not show the award of the PH.

5.  A DA Form 1, dated 16 September 1965, shows that the applicant was in the duty status of "absent sick gunshot wound left thigh."  This form does not show that the applicant was wounded as a result of hostile action.

6.  On 28 June 1966, the applicant was honorably released from active duty after completing a total of 2 years and 11 months of active military service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.

7.  There are no general orders in the available records which show that the applicant was awarded the PH.  There also is no evidence in the available records that show his wounds were a result of hostile action.

8.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  There was no entry pertaining to the applicant on this list of Vietnam casualties.


9.  The applicant provided a self-authored statement stating that he never received the order or the award for the PH.  He further states that he was injured on 12 September 1965 while serving in combat in the RVN.  He continues that he returned to duty and voluntarily completed his tour in Vietnam and noticed at the time of his discharge the award of the PH was not listed on his DD Form 214 and he thought it would be sent to him.

10.  The applicant provided a copy of an SF 502, dated 26 September 1965, from his service personnel records which show on 12 September 1965 he was accidentally shot through the right posterior thigh by another Soldier in the RVN.

11.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to award a PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that the wound was treated by medical personnel, and a record of this medical treatment must have been made a matter of official record.

12.  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 is entitled to the Purple Heart was carefully consider and found to be insufficient in evidence.

2.  Although the applicant's record shows that he was wounded in RVN the injury was not the result of hostile action.  Additionally, there is no evidence of record and the applicant did not provide any evidence to support meeting the criteria for the award of the PH based on friendly fire as stated in applicable Army regulations.

3.  Further, the applicant's name is not included on the Vietnam Casualty Roster, the official DA list of Vietnam battle casualties.  Absent any evidence of record confirming the applicant was wounded in action or treated for a combat-related wound while serving in Vietnam, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.

4.  Based on the foregoing, there is no basis for granting the applicant's requested relief.
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)                                         AR20090011963



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ABCMR Record of Proceedings (cont)                                         AR20090011963



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