IN THE CASE OF:
BOARD DATE: 28 October 2010
DOCKET NUMBER: AR20100011993
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 that the DD Form 214 (Report of Transfer or Discharge) of her deceased husband, a former service member (FSM), be corrected to include his award of the Purple Heart.
2. The applicant states the DD Form 214 does not include the FSM's Purple Heart, which had been awarded on 26 November 1968.
3. The applicant provides copies of the FSM's DD Form 214, the FSM's death certificate, and a Purple Heart Medal 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The FSM, a former enlisted Soldier, was commissioned a second lieutenant in the U. S. Army Reserve (USAR), Infantry Branch, on 29 May 1956.
3. He served in Korea from 25 June 1965 through 27 July 1966 and in Vietnam from 13 September 1967 to 23 February 1968.
4. On 14 February 1968, the FSM sustained multiple fragment wounds to his right arm, face, chest, abdomen, buttock, and right lower leg. An incident report states that a fragmentation grenade fell off another officer's pistol belt when he was getting into the FSM's jeep. The grenade killed the other officer and severely injured the FSM.
5. A Walter Reed Army Medical Center Narrative Summary, dated 26 February 1968, shows the wounds required the surgical amputation of the applicant's right arm below the elbow. He had complete peripheral facial paralysis. The penetrating wounds in his abdomen resulted in complications requiring a colostomy and resection of his colon. He had total right ear hearing loss; paralysis of the vocal cords; multiple healing fragment wounds to his buttock and right leg. He also had a fractured jaw and multiple retained metal fragments.
6. An 11 April 1969 Medical Evaluation Board (MEB) states the FSM was found to be unfit for duty due to the residuals of his 14 February 1968 wounds incurred as result of hostile action. He was to be referred to a Physical Evaluation Board (PEB).
7. On 26 November 1968, a Purple Heart Certificate was issued to the FSM. The record contains no order for this award and the applicant's name does not appear on the Vietnam Casualty List.
8. On 28 April 1969, a PEB found the FSM unfit for duty based on the injuries incurred on 14 February 1968 or the residuals thereof. The FSM was determined to be entitled to a 100 percent disability rating.
9. On 28 April 1969, a Line of Duty (LOD) determination was finalized. It found that the FSM had sustained non-hostile accidental injuries that were determined to be in the line of duty.
10. The FSM was medically retired on 7 July 1969. The FSM's DD Form 214 lists his awards as the Bronze Star Medal with "V" Device, National Defense Service Medal, Vietnam Service Medal, Armed Forces Reserve Medal, and the Republic of Vietnam Gallantry Cross with Silver Star.
11. Army Regulation 600-8-22 (Military Awards), paragraph 2-8, provides that the Purple Heart is awarded for a wound sustained while in action against the enemy or as a result of hostile action. The wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record.
12. Army Regulation 600-8-22, paragraph 2-9b(6)(b), 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 applicant states the DD Form 214 does not include the FSM's Purple Heart, which had been awarded on 26 November 1968.
2. The incident report and Line Of Duty determination show that the injuries sustained by the FSM were not combat-related injuries or the result of hostile action but rather an accidental incident that regrettably killed one officer and severely injured the FSM.
3. The issuance of the Purple Heart for the accidental injuries was in error. While it is policy of the Board not to take away an improperly awarded medal it is not appropriate to compound the earlier error by entering it on the DD Form 214.
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.
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