IN THE CASE OF:	  

		BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20100007331 


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 he was injured in the line of duty in Vietnam.  He suffered multiple contusions and abrasions.

3.  The applicant provides the following documents:

* a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 31 July 1971
* a copy of his DA Form 2658 (Health Record - Abstract of Service)
* a copy of a Veterans Administration (VA) Form 21-526e (Veteran's Application for Compensation or Pension at Separation from Service), dated 11 August 1971
* a copy of a VA Form 8-275-3 (Clinical Record Cover Sheet), dated 12 October 1969

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

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

2.  Counsel states the applicant was injured as a result of a direct enemy mortar or rocket attack in Vietnam when a bunker was hit and collapsed upon him.  He was treated for multiple contusions and abrasions.

3.  Counsel did not provide any additional documentary evidence.

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 Regular Army for a period of 3 years on 27 December 1968 and he held military occupational specialty 11C (Infantry Indirect Fire Crewmember).

3.  His records further show he served in the Republic of Vietnam from on or about 18 August 1969 to on or about 30 July 1971.  He was assigned to Company E, 4th Battalion, 503rd Infantry.

4.  He was honorably released from active duty on 31 July 1971 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.

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

6.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) is blank and item 41 (Awards and Decorations) does not show award of the Purple Heart.

7.  His records do not contain general orders which authorized him award of the Purple Heart.

8.  His name is not shown on the Vietnam casualty roster.

9.  He submitted the following documents:

	a.  A copy of a DA Form 2658, dated on various dates through his military service, shows he received medical services at the 4th Battalion, 503rd Infantry aid station on 29 August 1969.

	b.  A copy of a VA Form 21-526e, dated 11 August 1971, wherein he stated that he suffered multiple contusions and abrasions to his face, gut, and upper extremities in October 1969 and that he was treated at the 67th Evacuation Hospital in Vietnam.

	c.  A copy of a VA Form 8-275-3, dated 12 October 1969, that shows he was transferred from the 173rd Airborne Brigade aid station to the 67th Evacuation Hospital after he suffered multiple contusions or abrasions to his face, chest, and upper extremities when a bunker fell on him on 3 October 1969.

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 and 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.  Furthermore: 

	a.  The Purple Heart was established by General George Washington at Newburgh, NY, on 7 August 1782 during the Revolutionary War.  It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action.

	b.  A wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions pertinent to the Purple Heart.  A physical lesion is not required; however, the wound for which the award is made must have required treatment by medical personnel and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.

	c.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:  injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy generated explosions.
	d.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows:  frostbite or trench foot injuries; heat stroke; food poisoning not caused by enemy agents; chemical, biological, or nuclear agents not released by the enemy; battle fatigue; disease not directly caused by enemy agents; 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; post-traumatic stress disorders; and/or jump injuries not caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the Purple Heart.

2.  The evidence of record shows he suffered multiple contusions or abrasions to his face, chest, and upper extremities when a bunker fell on him on 3 October 1969 in Vietnam.  He was initially treated at the 173rd Airborne Brigade aid station but was later evacuated to the 67th Evacuation Hospital.  However, there is no indication that the injury was caused by the enemy.

3.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not the sole justification for the award.  

4.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

5.  His record is void of any orders that show he was awarded the Purple Heart, his name is not shown on the Vietnam casualty roster, his DA Form 20 does not indicate any combat wounds, his available medical records do not indicate he was wounded and/or injured as a result of hostile action, and the VA forms he submitted do not conclusively show he was injured as a result of enemy action.

6.  Notwithstanding the applicant’s sincerity, in the absence of additional documentary evidence such as witness statements, operation orders, morning reports, after action reports, official orders awarding him the Purple Heart, or additional documentation that conclusively shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to award him the Purple Heart in this case.

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)                                         AR20100007331



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ABCMR Record of Proceedings (cont)                                         AR20100007331



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