IN THE CASE OF:	 

		BOARD DATE:	  20 April 2010

		DOCKET NUMBER:  AR20090017887 


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 an injury he incurred while serving in the Republic of Vietnam.

2.  The applicant states he received a gunshot wound to his left leg.  He was driving a truck on his way back to the compound when his vehicle overheated.  He stopped to check the engine and while checking the engine, he was hit by a bullet shot from a nearby rice paddy.  Wounded, he crawled toward the motor pool.  A helicopter airlifted him to a local hospital in Vietnam and later he was sent to a military hospital in Japan.  He states he currently receives 20-percent disability from the Department of Veterans Affairs.  He says he has been trying to get his Purple Heart medal for a few years.  He was encouraged to apply to the Army Board for Correction of Military Records (ABCMR) by his local Department of Veterans Affairs office.

3.  The applicant provides an excerpt from a military medical evaluation form and a copy of his General Discharge Certificate.

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 enlisted in the Regular Army for a 3-year period on 26 June 1969.  He completed basic and advanced individual training meeting the qualification standards for military occupational specialty 63B (Wheeled Vehicle Mechanic).

3.  The applicant served in the Republic of Vietnam from 2 December 1969 to 22 March 1970 with Headquarters and Headquarters Company and Company A of the 84th Engineer Battalion (Construction).

4.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not contain an entry to show the applicant received a wound in combat.

5.  On 9 July 1971, the applicant was discharged from active duty with an under other than honorable conditions characterization of service.  Upon discharge, he received a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) showing he completed 1 year, 9 months, and 14 days of active service with 3 months and 21 days of foreign service.  On 25 May 1977, his discharge was upgraded to a general discharge by the DOD Special Discharge Review Program.

6.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he received the National Defense Service Medal, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal with Device (1960).

7.  The applicant's name is not listed on the Vietnam casualty roster as being injured during combat operations.

8.  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.

9.  The applicant's official military personnel file (OMPF) contains the following supporting documents:
	a.  Standard Form 502 (Clinical Record - Narrative Summary), dated 2 March 1970, shows "WIA [wounded in action] - 2 March - 0900 hours – gunshot wound left leg..."

	b.  DA Form 8-275-3 (Clinical Record Cover Sheet), dated 4 March 1970, signed by a Medical Service Corps officer showing the applicant received a gunshot wound to the left leg with no nerve or artery involvement.  An annotation shows that a line-of-duty determination had not been made pending an investigation.

	c.  Standard Form 504 (Clinical Record - History) shows the applicant was injured on 2 March 1970 and received initial medical treatment at the 67th Evacuation Hospital.  On 6 March 1970, he was evacuated to the 106th General Hospital.  The doctor's annotation shows the applicant was a 
20-year old male who received an accidental gunshot wound to his left calf that was closed by a surgical procedure.

	d.  DA Form 8-275-2 (Clinical Record Cover Sheet), dated 21 March 1970, shows the applicant received a gunshot wound to his left calf at approximately 1145 hours on 2 March 1970 near Qui Nhon in the Republic of Vietnam.  This form contains the statement, "Patient was injured when accidently shot with an M-16 near the motor pool."  The medical report shows he underwent general surgery to close the wound.

	e.  Standard Form 88 (Report of Medical Examination), dated 15 June 1971, showing the applicant was medically qualified for separation and under item 74 (Summary of Defects and Diagnoses) that he had a gunshot wound to his left foot on 2 March 1970 in Vietnam.

10.  As evidence to support his application, the applicant provided page 2 of his Standard Form 88 showing he was medically qualified for separation.  This page shows he received a gunshot wound to his left leg on 2 March 1970 in the Republic of Vietnam.

11.  References:

	a.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded to any member who, while serving under competent authority in any capacity with one of the Army Services, has been wounded or killed or who has died or may hereafter die after being wounded:

		(1)  in any action against an enemy of the United States;

		(2)  in any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged;

		(3)  while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party;

		(4)  as a result of an act of any such enemy of opposing armed forces; or

		(5)  as a result of an act of any hostile foreign force.

		(6)  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record.

	b.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) stated the authority to award the Purple Heart was delegated to hospital commanders.  Further, it directed that all personnel treated and released within 24 hours would be awarded the Purple Heart by the organization to which the individual was assigned.  Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam would be awarded the Purple Heart directly by the hospital commander rendering treatment.

	c.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9 of the version in effect at the time, provided that a brief description of wounds or injuries (including injury from gas) requiring medical treatment that were received through hostile or enemy action, including those requiring hospitalization, would be entered in item 40 of the DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in item 40.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he received a gunshot wound fired by enemy forces near his unit's motor pool on 2 March 1970 in the Republic of Vietnam.  He contends he should receive the Purple Heart for his combat wound.

2.  When the applicant was airlifted to the 67th Evacuation Hospital, medical treatment personnel noted on his medical chart that he was WIA on 2 March 1970 at approximately 0900 hours.  This was their initial impression of the applicant's physical condition.  Within 2 days, military medical personnel annotated the applicant's medical chart to show he received his gunshot wound by an accidental shot from an M-16 rifle.

3.  The applicant's name is not listed on the Vietnam casualty roster nor was a Purple Heart award order published and filed in the Awards and Decorations Computer-Assisted Retrieval System or his OMPF.  Therefore, in the absence of military and medical records showing the applicant's injury resulted from enemy forces, there is insufficient evidence upon which to base award of the Purple Heart.

4.  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 sufficiently shows his injury was the result of enemy action.

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)                                         AR20090017887



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090017887



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1