IN THE CASE OF:	  

		BOARD DATE:	  3 June 2010

		DOCKET NUMBER:  AR20090020236 


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 sustained while serving in the Republic of Vietnam (RVN).

2.  The applicant provides a statement through counsel.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be awarded the Purple Heart.

2.  Counsel states the applicant held military occupational specialty (MOS) 11B (Light Weapons Infantryman) and served in the RVN in the 25th Infantry Division as a radioman for a captain.  He was wounded on a patrol and evacuated as a result of the injury.  Counsel also states the applicant has no documentation to support his request, but is filing a claim with the Department of Veterans Affairs (VA) for service-connection for post-traumatic stress disorder and residuals of his injury.

3.  Counsel provides no documentation in support of this 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 was inducted into the Army of the United States on 1 October 1965.  He was trained in and awarded MOS 11B and later served in MOS 64A (Light Vehicle Driver).  He was honorably released from active duty on              29 September 1967 after completing 1 year, 11 months, and 29 days of creditable active military service.

3.  A DA Form 20 (Enlisted Qualification Record) shows the following:

* in item 31 (Foreign Service), the applicant served in the RVN during the period 22 April 1966 through 8 April 1967
* in item 38 (Record of Assignments), he was assigned in MOS 11B to the 14th Infantry, 25th Infantry Division during the period 23 April 1966 through 16 September 1966 with principal duties as a rifleman and radio telephone operator
* in item 40, he received a gunshot wound to the left foot on 21 July 1966

4.  The record is void of documentation showing the applicant was awarded the Purple Heart.

5.  The applicant's record includes a DA Form 2173 (Statement of Medical Examination and Duty Status) showing in item 30 (Remarks) that his unit was participating in a search and destroy mission on 21 July 1966.  After the company had engaged a sniper, the applicant put his weapon on semi-automatic.  After completion of the action, the applicant failed to place his weapon back on safety and while attempting to rise from a sitting position after a rest break, he accidentally shot himself in the foot while picking up his weapon.

6.  The applicant completed a DA Form 19-24 (Statement) confirming the events summarized on the DA Form 2173 and further stated he did not know what caused the weapon to fire.

7.  A DD Form 261 (Report of Investigation - Line of Duty and Misconduct Status) also confirmed the events summarized on the DA Form 2173 and was approved by the appropriate authority.  The investigation found the injury was incurred in the line of duty and was not the result of intentional misconduct or neglect.

8.  Army Regulation 600-8-22 (Military Awards) states 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 by medical personnel, and the medical treatment must have been made a matter of official record.

9.  This regulation further lists, in paragraph 2-8h, examples of injuries or wounds which clearly do not justify award of the Purple Heart, which include:

* accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action
* self-inflicted wounds, except when in the heat of battle and not involving gross negligence

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for award of the Purple Heart was carefully considered but is not supported by the evidence.

2.  The evidence of record clearly shows the applicant was injured when his weapon accidentally discharged.  The investigation conducted after the incident and the statement the applicant made at the time confirm his injury was not the result of hostile action.  Therefore, he is not entitled to award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x____  ____x____  ___x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that 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.



      __________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)                                         AR20090020236



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ABCMR Record of Proceedings (cont)                                         AR20090020236



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