IN THE CASE OF:
BOARD DATE: 12 January 2010
DOCKET NUMBER: AR20090013605
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 for injuries he received in Vietnam.
2. The applicant states he was poisoned during a stand down on fire base Sherry landing zone overnight.
3. The applicant provides the following documents in support of his application:
* DD Form 214 (Armed Forces of the United States Report of Transfer or
Discharge);
* DA Form 8-275 (Clinical Record Cover Sheet), dated 15 March 1971;
* Standard Form 89 (Report of Medical History), dated 22 April 1971;
* Standard Form 502 (Narrative Summary), dated 15 March 1971;
* Standard Form 539 (Abbreviated Clinical Record);
* Standard Form 88 (Report of Medical Examination), dated 22 April 1971; and
* Standard Form 513 (Consultation Sheet)
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was inducted into the Army of the United States on 22 July 1969. He completed training as a wheel vehicle mechanic and served in Vietnam from 13 July 1970 to 27 April 1971. His highest rank/grade attained was specialist four, E-4.
3. The applicants Clinical Record Cover Sheet, dated 15 March 1971, shows he was treated at the 24th Evacuation Hospital in Vietnam for necrotizing subcutaneous infection [bacterial infection] of his left 5th finger.
4. In Block 39 (Physicians Summary and Elaboration of All Pertinent Data) of the applicants Standard Form 89, dated 22 April 1971, the examining physician entered the following statement Bone and joint involvement related to cellulitis of left hand and little finger, now resolved. This medical document does not indicate the applicant received any wounds as a result of hostile action in Vietnam.
5. The applicants Standard Form 502 indicated that the progressing infection in his left 5th finger was thought to have originated from an insect bite.
6. There are no orders in the applicant's personnel records which show he was awarded the Purple Heart. Item 40 of his DA Form 20 (Enlisted Qualification Record) does not list any wounds as a result of hostile action. His DA Form 20 does not list the Purple Heart in item 41 (Awards and Decorations).
7. The applicants name is also not included on the Vietnam Casualty Roster.
8. The applicant was released from active duty on 27 April 1971. His DD Form 214 does not show entitlement to award of the Purple Heart.
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 required treatment, and the medical treatment must have been made a matter of official record. Paragraph 2-8b(2) states that for the purpose of considering an award of the Purple Heart, a
wound is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy. The regulation states that the key issue that commanders must take into consideration is the degree to which the enemy caused the injury. The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that he was poisoned during a stand down on fire base Sherry landing zone overnight. However, the applicants medical documents indicate he was treated for a bacterial infection to his left 5th finger, possibly caused by an insect bite. There is insufficient evidence to confirm he sustained a wound as a result of hostile action in Vietnam.
2. There are no orders available which authorized the applicant award of the Purple Heart and his name is not listed on the Vietnam Casualty Roster.
3. By regulation, in order to award the Purple Heart it is necessary to establish that a Soldier was wounded in action, the wound must have required treatment by medical personnel, and the treatment must have been made a matter of official record.
4. In the absence of any other corroborating evidence of record which shows the applicant was wounded or injured as a result of hostile action, there is insufficient evidence upon which to base award of 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) AR20090013605
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ABCMR Record of Proceedings (cont) AR20090013605
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