IN THE CASE OF:	  

		BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090021260 


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, he is entitled to award of the Purple Heart due to the fact he sustained an injury to his head while serving on active duty during the Vietnam Era.  The injury occurred while he was connecting a trailer to a 2.5 ton truck.  The tailgate of the truck unlatched and struck him in the head which resulted in a bleeding laceration.  He states this incident was witnessed by several Soldiers and he still has a scar.  He also states the Department of Veterans Affairs (VA) awarded him a service-connected disability rating for this injury.  He concludes that he did not request award of the Purple Heart sooner because he did not know he was eligible.

3.  The applicant provides two witness statements and a portion of a Rating Decision letter from the regional office of the VA located in San Diego, CA.

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 enlisted in the U.S. Army Reserve (USAR) on 27 April 1968 in Detroit, MI.  On 2 August 1968, he was ordered to active duty for the purpose of attending the Medical Corpsman Course and he was awarded military occupational specialty 91A upon completion.  On 15 December 1968, he was released from active duty (REFRAD) and reverted to the Fifth U.S. Army of the USAR.

3.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to the applicant at the time of his REFRAD shows he completed 4 months and 14 days of active duty service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of this form does not show award of the Purple Heart.

4.  Item 31 (Foreign Service) and Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) do not show he served overseas for any period of time.  His record is void of any evidence showing he served overseas.

5.  Item 40 (Wounds) of his DA Form 20 is blank.

6.  Item 41 (Awards and Decorations) of his DA Form 20 does not show award of the Purple Heart or any awards or decorations typically associated with overseas service.

7.  On 31 March 1974, the applicant was discharged from the USAR with an honorable characterization of service due to the expiration of his term of obligated service.  With the exception of initial entry training and annual training, his record is void of any evidence and he has failed to provide any evidence showing he served on active duty during any other time while in the USAR.

8.  The applicant provides two witness statements rendered by Veterans who served with him in a USAR unit based in Inkster, MI.  One witness attests he was present and witnessed the injury sustained by the applicant when the tailgate of a 2.5 ton truck fell and struck him in the head.  He states this incident occurred on or about 26 June 1969 while they were on duty in the motor pool in Inkster, MI preparing to depart for Camp Riley, MN.  The second witness attests he was aware this incident occurred as described above.

9.  The applicant provides a portion of a Rating Decision letter from the Regional Office of the VA located in San Diego, dated 23 October 2009.  This letter shows, in pertinent part, the VA awarded him service-connection for Traumatic Brain Injury with a scar with an evaluation of 70 percent (%) disability rating percentage, effective 23 July 2007.  The basis of this decision was evidence from his personnel record and buddy statements showing head trauma on 26 June 1969, while serving on active duty for training.

10.  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.  It also provides examples of injuries or wounds which clearly do not justify award of the Purple Heart.  This includes accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is eligible and should be awarded the Purple Heart was carefully considered and determined to lack merit.

2.  Evidence provided by the applicant shows he sustained an accidental head injury while connecting a trailer to a truck located in a motor pool in Inkster, MI on or about 26 June 1969.

3.  Although this incident occurred during the Vietnam Era, it happened within the borders of the continental United States and was the result of an accident.

4.  The sincerity of the applicant is 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 injury 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)                                         AR20090021260



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ABCMR Record of Proceedings (cont)                                         AR20090021260



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