IN THE CASE OF:	  

		BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100000697 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Purple Heart. 

2.  The applicant states on 5 March 1969 an assassination attempt was made on the South Vietnamese prime minister.  While breaching and disarming a large shape charge used in that attempt, he severely lacerated his finger on his left hand when he was cutting the device open with a pair of side-cutters to get to the detonators.  He states that it took three sutures to close the wound which was treated at the 218th Medical Dispensary.  He states that after the treatment he informed his command that he did not want a Purple Heart because he had not been wounded as the result of direct enemy engagement.  He states that he now knows he should have received the award and that its receipt would have an impact on his priority of care with the Department of Veterans Affairs.

3.  The applicant provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* CMAC Form 35 (Daily Journal)
* Standard Form (SF) 509 (Doctor’s Progress Notes)
* newspaper clipping about an attempt to kill the Vietnamese premier


* General Orders Number 1079, dated 13 December 1968, awarding the applicant the Soldier’s Medal
* affidavit of a former Soldier

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 military records show he enlisted in the Regular Army on
10 April 1967.  He completed initial entry training and he was awarded military occupational specialty 55D (explosive ordnance disposal (EOD) specialist).  He was promoted to the pay grade E-5.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam during the period 3 September 1968 to 11 November 1969, performing duties as an EOD specialist.

4.  A CMAC Form 35, dated 5 March 1969, contains in part the following entry, "An unk type claymore w/timing device was fnd in a pack behind the back cushion of the cycle.  It was disarmed by U.S. EOD personnel.  Neg injuries in the incident."

5.  An SF 509 shows the applicant received three sutures for a laceration on
5 March 1969.  On 12 March 1969, the stitches were removed and the wound was well healed.

6.  The applicant was honorably released from active duty on 12 November 1969 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  He completed 2 years, 7 months, and 3 days of creditable active service.

7.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 does not show award of the Purple Heart.

8.  Item 40 (Wounds) of the applicant's DA Form 20 is blank.

9.  The applicant's name does not appear on the Vietnam Casualty Roster.

10.  The applicant's records do not contain any evidence that indicates he was ever awarded the Purple Heart by proper authority.

11.  The applicant provided an affidavit from a former Soldier who was also an EOD specialist.  The affidavit describes the response to a call for EOD support and how the applicant "suffered a severe laceration" to his hand while dismantling an unexploded "homemade device."
 
12.  Army Regulation 600-8-22 (Military Awards) provides 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 by medical personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  While corroborating evidence indicates the applicant received a laceration requiring three sutures when he was attempting to dismantle an unexploded device, that injury was due to an accident, not as the intended result of the enemy device (its intent was to explode).  As such, his injury was not the result of enemy action.

2.  The applicant's DA Form 20 and the CMAC Form 35 do not show that the applicant was wounded and his name is not listed on the Vietnam Casualty Roster.

3.  In the absence of evidence that the applicant was wounded or injured as a result of hostile action and treated for such wounds, there is insufficient evidence upon which to base award of the Purple Heart.  As a result, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  Therefore, regrettably, there is insufficient basis for granting the applicant's requested relief.


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)                                         AR20100000697



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100000697



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1