IN THE CASE OF:	  

		BOARD DATE:	  31 November 2010

		DOCKET NUMBER:  AR20100014818 


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 an injury received during active duty in the Republic of Vietnam.

2.  The applicant states he injured his hand while in combat against the enemy.  When his rifle jammed he used a cleaning rod to clear the breach, but in his haste, he punctured his hand.  He managed to continue fighting by using hand grenades.  After the attack ended his injury was cleaned and bandaged.  A few days later his hand became swollen and the pain increased.  He was medically evacuated to a hospital where his hand was cut open to relieve the pressure and reduce the swelling.  Eventually, he recovered and returned to his unit.

3.  The applicant provides copies of his DD Form 214, DA Form 8-275 and 
8-275-3 (Clinical Record Cover Sheets), dated 16 March 1969; Standard Form (SF) 539 (Abbreviated Clinical Record), undated; and General Orders Number 5333, dated 21 June 1969, awarding him the Army Commendation Medal with "V" Device.

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 the following:

Event
Dates
Inducted into the Army of the U.S.
25 March 1968
Assigned as a grenadier with B Company, 4th Battalion, 21st Infantry Regiment, Republic of Vietnam
14 September 1968 to 
20 August 1969
Returned to the U.S.
21 August 1969
Assigned to Fort Polk, Louisiana
1 October 1969
Released from active duty 
24 March 1970
3.  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, Combat Infantryman Badge, Vietnam Service Medal, Republic of Vietnam Campaign Medal with 1960 Device, Bronze Star Medal, Army Commendation Medal, Sharpshooter Marksmanship Qualification Badge with Rifle {M-14) Bar, and the Marksman Marksmanship Qualification Badge with Rifle (M-16) and Machinegun (M-60) Bars.

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

	a.  Item 40 (wounds): blank; and

	b.  Item 41 (Awards and Decorations): no award of the Purple Heart.

5.  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.

6.  The Vietnam Casualty Roster does not list the applicant's name.

7.  Army Regulation 600-8-22 (Military Awards) 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.

8.  A review of DA Forms 8-275 and 8-275-3, dated 16 March 1969, provided by the applicant, reveals that he was diagnosed with cellulites of the right hand.  The injury was determined to have been in the line of duty.  There is no information about when the injury was incurred or the circumstances of the injury.

9.  A review of the SF 539, undated, provided by the applicant, reports that the applicant stuck a rod into his right hand and had since noticed increased pain and swelling.  Medical treatment was given.  There is no information about when or under what circumstances he stuck himself with a rod.

10.  General Orders Number 5333, Americal Division, dated 21 June 1969, awarded the applicant the Army Commendation Medal with "V" Device, for heroism in connection with military operations against a hostile force.  He distinguished himself by exceptionally valorous actions on 10 March 1969 when his position came under an intense enemy mortar and automatic weapons attack. Despite the intense enemy barrage from a machine gun emplacement only 20 feet in front of him, he exposed himself again and again to return fire on the enemy.  He stood up in the face of the enemy fire and threw hand grenades.  On the third attempt, he was successful in destroying the enemy machine gun.  The citation makes no mention of his having been injured or wounded during the firefight.

DISCUSSION AND CONCLUSIONS:

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

2.  There are no available general orders showing the applicant was awarded the Purple Heart.  The applicant's name is not listed on the Vietnam Casualty Roster. The evidence provided by the applicant is inconclusive to show that the injury to his hand was incurred as a result of hostile action.  In addition, the applicant acknowledged in his statement that his injury was the result of his accidentally puncturing his hand with his cleaning rod.  
3.  Regrettably, 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)                                         AR20100014818





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ABCMR Record of Proceedings (cont)                                         AR20100014818



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