BOARD DATE:	  7 January 2010

		DOCKET NUMBER:  AR20090012613 


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, in effect, that he was wounded in a combat zone, medically evacuated, and hospitalized for treatment of the wound.  The applicant also states that he believes he was not awarded the Purple Heart because his records did not show all of the pertinent information.

3.  The applicant provides four documents extracted from his military medical record; a letter from the Regional Office of the Department of Veterans Affairs located in Newark, New Jersey; and a letter he sent to the U.S. Army Human Resources Command as documentary evidence 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 (AUS) and entered active duty on 29 July 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  On 15 May 1970, the applicant was honorably discharged from the AUS for the purpose of immediate enlistment in the Regular Army.  He continued to serve on active duty until he was discharged on 29 January 1973.  The highest rank the applicant achieved while serving on active duty was specialist four/pay grade E-4.

3.  Item 31 (Foreign Service) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he served a tour of duty in the Republic of Vietnam during the period 14 January 1970 through 15 July 1970.

4.  The applicant provides a Standard Form 600 (Chronological Record of Medical Care), dated 24 April 1970, which shows he sustained a shrapnel fragmentation wound to his left eye.  This form also shows the applicant was medically evacuated from his unit aid station to Company B, 326th Medical Battalion, 101st Airborne Division, located in the Republic of Vietnam and was scheduled to be subsequently transferred to the 85th Evacuation Hospital for further evaluation and treatment of his injury.

5.  The applicant provides a Standard Form 513 (Consultation Sheet), dated 24 April 1970, which shows he sustained a fragmentation wound to his left eye.  This form also shows the applicant was medically evacuated to the 85th Evacuation Hospital and was scheduled to be subsequently transferred to the 95th Evacuation Hospital for further evaluation and treatment of his injury.

6.  The applicant provides a Standard Form 502 (Narrative Summary), dated 30 April 1970, which shows he was admitted to the Naval Support Activity Hospital on 24 April 1970 with a fragment wound to the left face just above the orbit.  The wound "occurred when a grenade accidently exploded nearby."  This form also shows the applicant's hospital course was uneventful and on 24 April 1970 the visual acuity in his left eye was recorded as 20/200.  His visual acuity subsequently improved and on 30 April 1970 his visual acuity was 20/20 in each eye.  The applicant was determined to be fit for duty and discharged to duty on 30 April 1970.

7.  Item 40 (Wounds) of the applicant's DA Form 20 shows he sustained a shrapnel wound to his left eye in April 1970.

8.  Neither item 41 (Awards and Decorations) of the applicant's DA Form 20, item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 15 May 1970, nor item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 29 January 1973 show award of the Purple Heart.

9.  The applicant's name does not appear on the Vietnam casualty roster.

10.  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, failed to reveal any orders awarding the applicant the Purple Heart.

11.  The applicant provides a letter from the Veterans Service Center Manager of the Regional Office of the Department of Veterans Affairs located in Newark, New Jersey, dated 14 July 2006.  This letter was rendered to certify that the records of the U.S. Department of Veterans Affairs disclosed that the applicant's wartime service-connected disability was totally disabling.  It also stated that a 100 percent permanent and total evaluation was assigned effective 11 June 2005 with the Veterans Affairs Rating Schedule and not so evaluated because of hospitalization or surgery and recuperation.

12.  The applicant provides a letter he sent to the U.S. Army Human Resources Command, dated 14 May 2008.  In this letter the applicant essentially inquired about the status of his appeal to be awarded the Purple Heart for a wound sustained in April 1970 while occupying a night defensive position in the jungles of the Republic of Vietnam.  The applicant's available record does not contain and he has not provided a copy of a response to his letter.

13.  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 applicant's contention that he should be awarded the Purple Heart was carefully considered.

2.  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.

3.  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 sustain a shrapnel injury from the grenade that exploded in his vicinity.  Additionally, there is no evidence that the grenade that caused his wound was being used at the time of his injury in the heat of battle.  In fact, a military medical authority said the applicant's wound "occurred when a grenade accidently exploded nearby."

4.  The applicant's service in the Republic of Vietnam is not in question.  Additionally, the sincerity of the applicant is 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.

5.  Accidental wounding not related to or caused by enemy action does not meet the eligibility criteria for award of the Purple Heart.  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.

6.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement as pertains to award of the Purple Heart.  This action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20090012613



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ABCMR Record of Proceedings (cont)                                         AR20090012613



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