IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100011363 


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.  He states the following:

	a.  Colonel (COL) J____ B. P____'s strict interpretation of Army Regulation 600-8-22 (Military Awards) which, in effect, denied him award of the Purple Heart by stating he was not injured as a result of enemy action, but as a result of running into the door during the rocket attack on 26 May 1968, is not true.

	b.  He was knocked to the ground by explosions generated by enemy 
122-millimeter rockets that landed near his living area in the Americal Division, Chu Lai, South Vietnam, on 26 May 1968.

	c.  There were no doors in his living area during the attack on 26 May 1968.

3.  He provides the following documents in support of his application:

* his request for award of the Purple Heart addressed to the U.S. Total Army Personnel Command, Alexandria, VA [currently known as U.S. Army Human Resources Command]
* medical documents
* DA Form 2-1 (Personnel Qualification Record – Part II)
* medical opinion from COL J____ B. P____, Chief, Clinical Policy Consultant's Division, Office of the Surgeon General
* Army Regulation 600-8-22, paragraph 2-8, and Public Law 104-106 governing award of the Purple Heart

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 enlisted in the Regular Army on 8 November 1966.  He served in Vietnam from 23 March 1968 to 22 March 1969 with the 23rd Administration Company, Americal Division.

3.  His medical documents show he was treated on 26 May 1968 for skinned left knuckles and a cut on right big toe caused by running out of a door during a rocket attack.

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

5.  His name is not included on the Vietnam casualty roster.

6.  He was discharged on 18 December 1969 for immediate reenlistment.  His DD Form 214 for the period ending 18 December 1969 does not show entitlement to the Purple Heart.

7.  He reenlisted on 19 December 1969 and he continued to serve on active duty until he retired from active duty on 28 February 1995 by reason of length of service.  His DD Form 214 for the period ending 28 February 1995 does not show the Purple Heart as an authorized award.

8.  On 18 December 1990, he submitted a request for award of the Purple Heart to the U.S. Total Army Personnel Command.  He stated the following:

* he received major injuries and was put on light duty for 30 days
* he submitted this request late because his medical records were lost
* several 122-millimeter rockets landed very near his building during the attack
* he was knocked to the ground as he exited the building
* he realized he was injured upon entering a bunker
* he was taken to the dispensary (aid station) for treatment
* he told the medics that he got hurt by running out the door to the bunker

9.  On 23 February 1991, COL J____ B. P____ provided a medical opinion to the U.S. Total Army Personnel Command.  He defined a wound for the purpose of awarding the Purple Heart as an "injury to any part of the body from an outside force or agent" as a result of combat.  COL J____ B. P____ stated the following:

	a.  The applicant's medical records document that he sustained some cuts and abrasions on his hand, toe, and knee while "running out of a door" during a rocket attack.

	b.  The minor injuries were apparently the result of his falling on the ground or running into the door and not the direct result of injury from the rocket or injury from any debris caused by the rocket.

	c.  There is insufficient medical evidence to support the award of the Purple Heart.

10.  Army Regulation 600-8-22 provides 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.  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.

11.  Army Regulation 600-8-22, paragraph 2-8g, states 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

DISCUSSION AND CONCLUSIONS:

1.  The interpretation of Army Regulation 600-8-22 cited in the medical opinion from COL J____ B. P____ is accurate and in accordance with current guidelines for award of the Purple Heart.

2.  In the applicant's request for award of the Purple Heart to the U.S. Total Army Personnel Command in December 1990, he expressed that he was injured when he was running out of the door to the bunker.  His statement was recorded in his medical documents.

3.  He now contends he was knocked to the ground by explosions generated by enemy rockets; however, he has not provided sufficient evidence to support that his injuries were incurred as a result of hostile action.  His medical documents confirm he sustained injuries when he was running out of a door during a rocket attack.

4.  His 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.

5.  In the absence of any other corroborating evidence of record which shows he 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.

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 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)                                         AR20100011363



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ABCMR Record of Proceedings (cont)                                         AR20100011363



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