BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100007680 


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 Army Regulation 600-8-22 (Military Awards), paragraph 2-8b(4), dated 1995, governs award of the Purple Heart for an injury caused by a vehicle or aircraft accident resulting from enemy fire.

3.  The applicant provides the following documents:

* self-authored statements
* one letter of support
* various medical documents

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.  After having prior service in the U.S. Navy, the applicant enlisted in the Regular Army on 17 November 1969.

3.  He served in Vietnam from 16 July 1970 to 19 February 1971.

4.  The applicant’s DA Form 3647-1 (Clinical Record Cover Sheet), dated
29 March 1971, shows he was injured in a truck accident on 8 February 1971 in An Khe, Vietnam, with other details unknown.  His diagnoses were listed as pneumothorax [collapsed lung], multiple bruises, and contusions.  The line of duty was undetermined.

5.  His DA Form 20 (Enlisted Qualification Record) does not list the Purple Heart in item 41 (Awards and Decorations).

6.  The applicant’s personnel records do not contain orders which show he was awarded the Purple Heart.  His DA Form 20 does not list any wounds as a result of hostile action in item 40 (Wounds).  His name is not included on the Vietnam Casualty Roster.

7.  The applicant’s Standard Form (SF) 502 (Narrative Summary) indicated the applicant was involved in a truck accident while in the Republic of Vietnam.  The truck apparently rolled over on him and he suffered a left hemothorax and soft tissue injuries of his shoulder, thoracolumbar spine, and right hip.  He was treated in Vietnam with tube thoracostomy and had resolution of his pneumothorax.  His diagnoses were listed as post-left pneumothorax, traumatic, secondary to truck accident; post soft tissue injury, left shoulder and right hip; and post left tube thoracostomy.

8.  The applicant was discharged on 7 December 1971 for immediate reenlistment.  His DD Form 214 for the period ending 7 December 1971 does not show the Purple Heart as an authorized award.

9.  He reenlisted on 8 December 1971 and he continued to serve on active duty through reenlistments until he retired from active duty on 31 October 1986 by reason of length of service.  His DD Form 214 for the period ending 31 October 1986 does not show the Purple Heart as an authorized award.

10.  The applicant provided a self-authored statement in support of his claim and stated the following:

* he spent a few years recovering from his wounds after returning to the United States

* he began to question award of the Purple Heart and was told he did not meet qualifications for the Purple Heart
* he continued to have pain from his wounds he sustained in Vietnam
* he explained to his doctor what happened and was told he should have been awarded the Purple Heart
* he has collected information on the Purple Heart and searched for Soldiers who served with him in Vietnam 

11.  He provided a notarized statement in which he described the incidents involving his injuries in Vietnam.  He stated the following:

* he arrived at An Khe, Vietnam in July 1970 and was assigned to Headquarters Company, Division Artillery, 4th Infantry Division
* he was reassigned to Radar Company which supported ground surveillance security for Firebase Schueller and Action, landing zones, and listening posts
* he and three other Soldiers were given a mission to take a piece of equipment to one of the listening posts located at the top of a very high mountain
* he and the other Soldiers came under enemy fire, and the driver panicked and lost control of the truck
* the truck tumbled down the hill and landed on top of him
* he was transported to an aid station, then transferred to a hospital in Vietnam
* he was later medically evacuated (MEDEVAC'd) from Vietnam to Japan and from Japan to the United States
* he has tried for 30 years to contact someone from his old unit or someone who was with him when the incident occurred

12.  The applicant provided a statement from a former fellow Soldier who stated the following:

* he arrived in An Khe, Vietnam in July 1970 and he was assigned to Headquarters Company, Headquarters Command, Division Artillery, 4th Infantry Division where he joined the applicant
* they operated ground surveillance radar and perimeter security for Camp Radcliff and Firebase Schueller and Action
* they were given a mission to take a generator for the radar to the field
* the radar site was positioned at the top of a very high hill
* the detail consisted of the applicant, two other Soldiers, and himself
* they came under enemy fire, and the driver panicked and lost control of the truck
* the truck rolled backwards down the hill, injured his hand, and the applicant was trapped inside when the roof collapsed
* he and the applicant were MEDEVAC'd to an aid station and the applicant was further taken to a hospital
* he was told the applicant had massive internal injuries and he (applicant) was taken to a hospital in Japan

13.  Army Regulation 600-8-22 (Military Awards) provides 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.  This regulation states that when contemplating award of the Purple Heart, the key issue that commanders must take into consideration is the degree in 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 award.  It further states that injuries or wounds which clearly do not justify award of the Purple Heart include accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.  

14.  Army Regulation 600-8-22, paragraph 2-8g, gives 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
* Concussion injuries caused as a result of enemy generated explosions

15.  Army Regulation 600-8-22, paragraph 2-8h, gives 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
* jump injuries not caused by enemy action

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant cites Army Regulation 600-8-22, paragraph 2-8b(4), dated 1995, he probably meant paragraph 2-8g, which governs award of the Purple Heart for an injury caused by a vehicle or aircraft accident resulting from enemy fire.

2.  The applicant’s DA Form 3647-1, dated 29 March 1971, indicates he was injured in a truck accident on 8 February 1971 in An Khe, Vietnam and he was diagnosed as having pneumothorax, multiple bruises, and contusions.  However, the evidence of record does not confirm the applicant’s truck accident was caused by enemy action.  In addition, the applicant acknowledged that the driver of the truck panicked and lost control of the truck, indicating that it was more of an accident rather than as a result of enemy action.

3.  The applicant’s service record does not contain orders which authorized him award of the Purple Heart and his name is not listed on the Vietnam Casualty Roster.  In the absence of any other corroborating evidence of record which shows the applicant was wounded or injured as a result of hostile action, there is insufficient evidence upon which to base award of the Purple Heart in this case.

4.  The letter of support from the former fellow Soldier is acknowledged.  However, this document alone is insufficient as a basis to grant award of the Purple Heart in this case.

5.  In view of the foregoing, there is no 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)                                         AR20100007680



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceed