IN THE CASE OF:
BOARD DATE: 20 May 2010
DOCKET NUMBER: AR20090019815
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 his DD Form 214 (Report of Separation From Active Duty) for the period ending 30 April 1976 be corrected to add the Army Sea Duty Ribbon (ASDR) and the Purple Heart.
2. The applicant states that his Army Marine Service Book verifies his entitlement to the ASDR and he is entitled to the Purple Heart for the traumatic amputation of his finger.
3. The applicant provides a Department of Veterans Affairs computerized disability rating summary; his DD Form 214 for the period ending 30 April 1976; an internet printout of ribbon only awards; and his Marine Service Book.
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. Army Regulation 600-8-22 (Military Awards), paragraph 57, Army Sea Duty Ribbon, states that on 17 April 2006, the Principal Deputy Assistant Secretary of the Army (Manpower and Reserve Affairs) approved the establishment of the ASDR. It is awarded to members of the Active Army, Army National Guard (ARNG), and United States Army Reserve (USAR) for completion of designated periods of sea duty aboard Class A and Class B United States Army Vessels (USAV). The ASDR may be awarded retroactively to those personnel who were credited with service as defined above after 1 August 1952, the activation date of the first heavy boat company in the Transportation Corps. Eligible members or their next of kin may submit requests for the ASDR to the Chief, Marine Qualification Division, Attention: Career Pay Office, HRC, Building 705, Room 231, 705 Read Street, Fort Eustis, VA 236045407. Requests should include the individuals full name, social security number or serial number, dates of service, DD Form 214 (Certificate of Release or Discharge from Active Duty) (if applicable), and information concerning the individuals qualifying sea service duty.
3. Army Regulation 15-185 (Army Board for Correction of Military Records), the regulation which governs the Board, paragraph 2-9, states an application may be rejected by the staff of the ABCMR if the applicant has not exhausted all available administrative remedies afforded by existing law or regulation to correct the alleged error or injustice.
4. Since there is no evidence that the applicant submitted a request for award of the ASDR to the HRC, he has not exhausted his administrative remedies. As such, this portion of his request will not be discussed further in these proceedings.
5. The applicants military records show that he entered active duty in May 1953 and was released from active duty in May 1955. He enlisted in the Marine Corps in October 1955 and was released from active duty in November 1957. He enlisted in the Army on 14 November 1957, served two tours in Korea, Germany, three tours in Vietnam, and Okinawa.
6. The applicant served in a variety of military occupational specialties, including marine engineer, and senior amphibian engine mechanic.
7. On 5 October 1967 while in Vietnam, the applicant's finger was amputated. A DA Form 2173 (Statement of Medical Examination and Duty Status) show that the applicant "was attempting to place the port ramp cable around the ramp winch. A forklift had lifted the ramp to allow the ramp cable to remain slack so he could place it around the winch. The ramp slipped off the forklift blade. This caused the slack cable to tighten and strike [the applicant's] left hand which was located between the winch and the cable. The tips of three fingers were crushed and dismembered."
8. On 30 April 1976, the applicant was retired for years of service.
9. Army Regulation 600-8-22 provides that the Purple Heart is awarded for wounds 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 by a medical officer, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. While there is conclusive evidence to show the applicant suffered a traumatic amputation of his finger while in Vietnam, it is abundantly clear that the amputation was due to an accident and not as a result of hostile action.
2. As such, the applicant is not entitled to the Purple Heart.
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) AR20090019815
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