BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100010582 


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 for wounds received in the Republic of Vietnam.

2.  The applicant states he was injured on 6 June 1970, when the explosives he and other U.S. Soldiers were using to destroy an enemy bunker exploded prematurely.  Most of them were injured.  He was standing over a detonation cord and was thrown ten feet.  He sustained hearing loss and wounds to his legs.  The man on his right was killed.  He helped put a tourniquet around the arm of another Soldier.  When the medical evacuation helicopter arrived and took the wounded, the applicant remained to make sure no one or anything was left behind.  After he got back to the rear, he was debriefed and then went to the aid station to have his wounds and hearing treated.

3.  The applicant provided, in support of his application, a statement from another Soldier who was with the applicant on 6 June 1970 with a copy of his Purple Heart certificate.

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.  On 8 November 1968, the applicant was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialty (MOS) 11F (Infantry Intelligence and Operations).

3.  On 26 October 1969, the applicant departed Fort Benning, Georgia, for duty in the Republic of Vietnam.  On 4 January 1970, he was assigned as an assistant squad leader with the 41st Infantry Security Dog Platoon, 1st Infantry Division.  On 28 March 1970, he was reassigned to the 43rd Infantry Platoon, 1st Brigade, 5th Infantry Regiment.

4.  On or about 22 October 1970, the applicant departed the combat theater and returned to the United States.

5.  On 22 October 1970, the applicant was released from active duty and transferred to the United States Army Reserve Control Group (Annual Training).  He had attained the rank of sergeant, pay grade E-5, and had completed 
1 year, 11 months, and 15 days of creditable active duty service.

6.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 lists his awards as the National Defense Service Medal, Vietnam Service Medal, Combat Infantryman Badge, and the Expert Marksmanship Qualification Badge with Rifle Bar.

7.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

	a.  in Item 40 (Wounds): Blank

	b.  in Item 41 (Awards and Decorations): the same awards already shown on his DD Form 214.

8.  The witness statement provided by the applicant explains that on or about 
6 June 1970, he was on a mission with a company of rangers.  There were two teams of 6 men each assigned to recon a bombed area.  The applicant was assigned to the author's team as a dog handler.  They discovered an enemy complex of about 30 bunkers.  The enemy was all around but did not know they had penetrated the complex.  They called in their discovery and were told to secure the area and wait for the arrival of the engineers.  When they had almost completed their laying of the explosives the whole complex blew up prematurely.  The two engineers were killed.  Everyone else had injuries from the debris.  The author lost his left hand, was blinded in his right eye, and lost his hearing in his left ear.  The applicant helped put a tourniquet on his left arm.  The applicant was dazed and suffered from explosion debris.  His dog was also injured.  The author was put on the second helicopter with the dead engineer and the scout dog.  Two were killed and three suffered major injuries.  The Purple Heart certificate dated 
9 June 1970, provided by the author, shows a Medical Corps colonel awarded him the Purple Heart for wounds received in action.

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 awarding the applicant the Purple Heart.

10.  The applicant's name is not listed on the Vietnam Casualty Roster.

11.  Army Regulation 600-8-22 provides for award of the Purple Heart to a member of the Armed Force of the United States who, while serving in any capacity with one of the U.S. Armed Services has been wounded or killed, or who has died or may die after being wounded in any action against an enemy of the U.S.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show award of the Purple Heart.

2.  The witness statement clearly reports that the applicant received some injuries as a result of the explosion; however, there is no available evidence showing that the applicant ever received medical treatment for any such wounds.

3.  Furthermore, the evidence indicates that the cause of the premature detonation is unknown and may have been the result of an accidental mishap rather than enemy involvement. 

4.  In view of the above, the applicant's request should be denied.

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)                                         AR20100010582





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ABCMR Record of Proceedings (cont)                                         AR20100010582



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