IN THE CASE OF:	  

		BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20100007444 


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, in effect, correction of his records by removing:

	a.  the Purple Heart from his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 27 March 1968; and

	b.  documents that belong to another Soldier from his DA Form 201 (Military Personnel Records Jacket (MPRJ)). 

2.  The applicant states, in effect, the wound to his left foot was self inflicted as a result of the accidental discharge of his M-79 Grenade Launcher.  He states he was awarded the Purple Heart and he received punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for the same incident.  He believes the Purple Heart should be removed from his records because having it listed in his records is an injustice to the Soldiers who have rightfully earned it. 

3.  He also states that military documents belonging to a Soldier with the last name of Xxxxport are erroneously filed in his MPRJ.  

4.  The applicant provides the following documents:

* General Orders (GO) Number 57, dated 14 February 1967, Headquarters, 9th Infantry Division, which award him the Purple Heart
* A DA Form 8-275-3 (Clinical Record Cover Sheet)
* A DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ)


* A copy of his DD Form 214
* A DA Form 20 (Enlisted Qualification Record)

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 personnel records show he was inducted into the Army of the United States and entered active duty on 28 March 1966 for a period of 2 years.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant’s MPRJ contains a DA Form 20 (Enlisted Qualification Record) that shows the following:

	a.  Item 31 (Foreign Service) shows he served overseas in the U.S. Army Pacific (USARPAC) in the Republic of Vietnam (RVN) from 10 December 1966 through 9 December 1967; and

	b.  Item 40 (Wounds) shows the entry "contusion of left foot with abrasion occurring on 10 February 1967."

4.  The applicant provides a copy of GO Number 57, dated 14 February 1967, which shows he was awarded the Purple Heart for wounds received in connection with military operations against a hostile force in the RVN on 10 February 1967.

5.  A copy of DA Form 8-275-3 shows he was admitted to a medical treatment facility on 14 February 1967.  Item 23 (Diagnoses) of the same form shows, in pertinent part, contusion of left foot with abrasion, no artery or nerve involvement."  The incident took place at approximately 0800 hours on 10 February 1967 as a result of the applicant accidentally discharging his own 
M-79 grenade launcher.

6.  On 23 March 1967, the applicant received punishment under the UCMJ, for violating Article 92 by attempting to clean a loaded weapon without first unloading it. 

7.  The applicant’s DD Form 214 shows he was honorably released from active duty on 27 March 1968 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining military obligation.  At the time he had completed 2 years of net active service and 1 year of foreign service.  

8.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded the Purple Heart, Combat Infantryman Badge, National Defense Service Medal, Vietnam Service Medal with one bronze service star, Republic of Vietnam Campaign Medal with Device 1960, the Army Good Conduct Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), and two Overseas Service Bars.  

9.  A thorough review of the applicant's MPRJ revealed a Standard Form (SF) 88 (Report of Medical Examination) and an SF 89 (Report of Medical History) which belongs to another service member.  The misfiled documents contain the last name Xxxport and the service number ####0154.  

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, 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.

11.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) prescribes the policies governing the OMPF, Military Personnel Records Jacket, Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 states, in pertinent part, that once a document is placed in the OMPF it becomes a permanent part of that file unless the OMPF custodian removes the documents that have been improperly filed.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his record should be corrected by removing the Purple Heart and removing documents belonging to another Soldier were carefully considered and the evidence is sufficient to support his request.

2.  GO Number 57, dated 14 February 1967, authorizes the applicant award of the Purple Heart and the applicant's DD Form 214 shows this award in item 24.  However, evidence provided by the applicant shows he was treated for a self inflicted wound as a result of an accidental discharge of his grenade launcher.  The evidence also shows he received punishment under the UCMJ for this same incident.  

3.  In this case, the evidence shows the applicant was erroneously awarded the Purple Heart for injuries sustained on 10 February 1967.  Therefore, it would be appropriate to correct the applicant’s records by deleting the Purple Heart from his DD Form 214.  It would also be appropriate to revoke that portion of GO Number 57 awarding the applicant the Purple Heart. 

4.  The applicant's MPRJ reveals copies of an SF 88 and SF 89 which do not belong to him.  It is apparent that these documents were improperly filed.  Therefore, it would be appropriate to expunge these documents from his MPRJ and file them with the appropriate MPRJ.

BOARD VOTE:

____x____  ____x____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

	a.  deleting from item 24 of his DD Form 214 the Purple Heart;

	b.  removing the SF 88 and the SF 89 pertaining to Xxxxport, ####0154 from the applicant's MPRJ; and

	c.  revoking that portion of GO Number 57, pertaining to award of the Purple Heart to "Newxxx, Xxhn R. US 5587#### SP4 E4 Co A 2d Bn 39th Inf, 
10 February 1967.  



      _____________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)                                         AR20100007444



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ABCMR Record of Proceedings (cont)                                         AR20100007444



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