IN THE CASE OF:	  

		BOARD DATE:	  28 September 2010

		DOCKET NUMBER:  AR20100010817 


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 served his country honorably in Vietnam and was wounded in action but he was not awarded the Purple Heart. 

3.  The applicant provides the following documents:

* Department of Veterans Affairs (VA) rating decision
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Immunization, Dental, and Health records
* Laboratory reports
* Reports of Medical History and/or Examination
* Statements of medical condition

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 on 3 February 1969 and held military occupational specialty 11B (Light Weapons Infantryman).  He served in the Republic of Vietnam from 20 July 1969 to 18 July 1970 and he was assigned to Company C, 2nd Battalion, 8th Infantry, 4th Infantry Division.

3.  He was honorably released from active duty on 2 February 1971 and he was transferred to the U.S. Army Reserve Control Group to complete his remaining Reserve obligation.  

4.  Item 24 (Decoration, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the National Defense Service Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Vietnam Service Medal with 2 bronze service stars, Combat Infantryman Badge, Vietnam Campaign Medal with Device (1960), and Army Commendation Medal.

5.  His name is not shown on the Vietnam casualty roster and item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) shows a blank entry.  

6.  His records contain a DA Form 8-275-3 (Clinical Record Cover Sheet) that shows he suffered a fragment wound to his right calf on 18 June 1970 at Firebase Armegedelon, Vietnam and was treated at the 17th Field Hospital. However, the entry in item 3 (Type of Case) (Disease, Injury, or Battle Casualty) of this form is marked as "injury."  There is no indication of what caused his injury.

7.  His records also contain a Standard Form 514-B (Laboratory Report) that show the entries "Shrapnel and powder burns to the right leg"; however, there is no indication of what caused this injury. 

8.  He submitted a copy of his VA rating decision, dated 8 October 2009, that shows he claimed service-connected disability compensation for a scar caused by a shrapnel wound to his right leg.

9.  Army Regulation 600-8-22 (Military Awards) provides that 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.

	a.  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.

	b.  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 an injury in the form of shrapnel wound and/or powder burns to his right calf on 18 June 1970 at a firebase in Vietnam and was treated at the 17th Field Hospital General.  However, it is unclear if this injury was caused by enemy action, friendly action, or an accident. 

3.  By regulation, accidents and/or accidental wounding not related to or caused by enemy action and self-inflicted wounds, except when in the heat of battle and not involving gross negligence, are examples of injuries or wounds which clearly do not justify award of the Purple Heart.

4.  The criteria for award of the Purple Heart requires the submission of substantiating evidence to verify 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.

5.  In this case, there is no evidence available to show the applicant's eligibility for award of the Purple Heart.  His name is not shown on the Vietnam casualty roster, his DA Form 20 does not document any combat wounds, and there is no other evidence in his service records that shows he was wounded or injured as a result of hostile action or treated for such wounds.
6.  Regrettably, absent evidence which conclusively shows that the applicant sustained wounds or injuries as a result of hostile action, that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is an insufficient basis for awarding the Purple Heart to the applicant.

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)                                         AR20100010817





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ABCMR Record of Proceedings (cont)                                         AR20100010817



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