IN THE CASE OF:	  

		BOARD DATE:	 9 September 2010 

		DOCKET NUMBER:  AR20100007352 


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 that he received a burn to his left hand when the hot barrel of his M-60 melted through his glove when he grabbed it to return fire after his helicopter was shot down.

3.  The applicant provides a copy of his application for and denial of the Purple Heart by the Army Awards Branch.  

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 service medical and dental records are believed to be on permanent loan to the Department of Veterans Affairs and are not available for review.  Further, the available service records pertain only to his post active duty Army National Guard service.

3.  His DD Form 214 (Report of Transfer or Discharge) provides the following evidence:

	a.  enlistment in the Regular Army on 30 April 1969;

	b.  completion of training with award of the military occupational specialty 67M (Helicopter Repairman);

	c.  service in Vietnam from 21 March 1970 through 23 February 1971 with Company C, Headquarters Command USAAVNS Element 3A-3186, Third U.S. Army; 

	d.  award of the National Defense Service Medal Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), Air Medal, Good Conduct Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar; and

	e.  honorable release from active duty on 17 December 1971.

4.  In the development of this case, the applicant applied to the Army Awards Branch for award of the Purple Heart and was denied entitlement on 27 October 2006.  He provides a copy of the documents related to that application and denial which includes but is not limited to the following:

	a.  a personal account of the 23 August 1970 incident wherein he received burns to his left hand when he grabbed his M-60 to provide covering fire following his helicopter being shot down;

	b.  two statements from a fellow Soldiers who attest that they were present following the 23 August 1970 accident and know that the applicant had received burns to his hand and that an examination of the helicopter that was air lifted in showed numerous hits from small arms fire;

	c.  parts of three DA Forms 1591 (Daily Staff Journal or Duty Officer's Log), that confirms that the applicant was aboard a helicopter that was shot down on 7 August 1970.  These reports do not indicate any causalities or injuries to crewmembers;

   d.  a statement from a former medic stating he had reviewed a Standard Form 600 (Chronological Record of Medical Care ), dated 23 August 1970, that he had completed.  He reports that this was a "post accident" check-up and treatment for a burn to the applicant's hand.  While he does not specifically remember the applicant, it would have been appropriate for him to have treated him on the flight line for such an accident; and 

	e.  a Standard Form 600 contains a 23 August 1970 entry stating "post accident check also burn on left hand  soaked hand in H2O and pHisehex  apply sulfamylon and dressing - burns 1st degree  rtn in a.m."

8.  A review of the Vietnam Casualty List failed to locate any reference to the applicant.

9.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS) an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command failed to reveal any orders for any awards.

10.  U. S. Army Vietnam Regulation 672-1 (Decorations and Awards) governed the military awards program in Vietnam during the Vietnam War.  It states 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.

11.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he received a burn to his left hand when the hot barrel of his M-60 melted through his glove when he grabbed it to return fire after his helicopter was shot down.


2.  The evidence of record shows that the applicant sustained a burn to his left hand on 23 August 1970.  This injury required medical treatment and the treatment is a matter of record.  However, there is insufficient supporting evidence to show that the burn occurred while in action against an enemy.

3.  The statements from the medic and two fellow Soldiers support the contention that the applicant sustained an injury to his hand on 23 August 1970; however, these personnel can only attest to the fact that he sustained an injury; not now he sustained the injury and was the wound a direct result of the enemy.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement.

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)                                         AR20100007352





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ABCMR Record of Proceedings (cont)                                         AR20100007352



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