IN THE CASE OF:	  

		BOARD DATE:	    12 October 2010

		DOCKET NUMBER:  AR20100011440 


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 was wounded on 13 October 1969 while conducting combat operations in Vietnam.  He believes his combat wound now qualifies him for the award due to retroactive changes to the criteria for the Purple Heart.

3.  The applicant provides:

* a self-authored statement
* two Standard Forms 502 (Clinical Record - Narrative Summary)
* a Standard Form 519-A (Radiographic Report)
* a Department of Veterans Affairs (VA) Form 21-2545 (Report of Medical Examination for Disability Evaluation)
* a VA notification of his approved claim for disability compensation
* a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 16 April 1968.  After completing initial entry training, he attended the U.S. Army Infantry School as an officer candidate.  On 6 March 1969, he was appointed as a Reserve commissioned officer of the Army, entered active duty, and was awarded specialty 1542 (Infantry Unit Commander).  He was honorably released from active duty on 5 March 1971 after completing 2 years, 10 months, and 20 days of active military service.

3.  A DA Form 66 (Officer Qualification Record) shows in item 17 (Foreign Service) shows the applicant served in Vietnam from on or about 30 August 1969 to on or about 28 August 1970.  Item 18 (Record of Assignments) shows he was assigned to the 101st Airborne Division during his service in Vietnam with further assignment to the 3d Battalion, 187th Infantry, 101st Airborne Division, and the 3d Brigade, 101st Airborne Division.  Item 21 (Awards and Decorations) does not show he was awarded the Purple Heart.

4.  The applicant's DD Form 214 does not show in item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) that he was awarded the Purple Heart.

5.  The applicant's official military personnel file is void of documentation showing he was injured in combat.

6.  The applicant's name does not appear on the Vietnam casualty roster.

7.  A review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal orders announcing award of the Purple Heart to the applicant.

8.  The Standard Forms 502 provided by the applicant show he received medical treatment for a gunshot wound to the left buttock incurred on 13 October 1969.  The forms do not provide any information regarding the circumstances surrounding his injury.

9.  The applicant states that he was serving as the platoon leader of 2d Platoon, Company D, 3d Battalion, 187th Infantry Brigade, 101st Airborne Division, when he was injured.  His account of the incident is as follows:

Shortly after last light on an unusually dark moonless night my platoon divided into squad-sized elements and moved out from our company location to various surrounding night patrol positions.  All of our troops knew we [were] in an area of active Viet Cong operations having made contact with and getting an enemy KIA just a few days earlier and then having one of our own seriously wounded by a booby trap earlier on this same day.  While I was positioning my men at our night location one of our sergeants, believing he was hearing some enemy activity nearby, instinctively fired his entire 20-round magazine on full automatic in that direction hitting me with one round.

10.  Army Regulation 600-8-22 (Military Awards) states 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.

11.  Army Regulation 600-8-22 provides for award of the Purple Heart to individuals wounded or killed as a result of friendly fire in the heat of battle as long as the friendly projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for award of the Purple Heart.

2.  The applicant states he was wounded by a shot fired by a sergeant in his platoon.  In order to establish the applicant's entitlement to the Purple Heart for a wound resulting from friendly fire, the evidence must show that the injury occurred in the heat of battle.  The available documentation does not show that this was the case.  Accordingly, the applicant is not entitled to award of the Purple Heart.



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)                                         AR20100011440



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ABCMR Record of Proceedings (cont)                                         AR20100011440



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