IN THE CASE OF:	  

		BOARD DATE:	  9 December 2010

		DOCKET NUMBER:  AR20100015590 


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 and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show it.

2.  The applicant states he did not know he could receive the Purple Heart.  He still lives the emotional distress, rapid heartbeat, excessive aspiration, loss of appetite, excruciating pain, rehearing of gunshots, recollection of the odor of decomposed Soldiers, and fearful flashbacks of the Vietnam War.  He was injured in Vietnam in October 1970.  He nearly died for his country and wishes to receive the Purple Heart.

3.  The applicant provides:

* DA Form 3349 (Medical Condition - Physical Profile Record)
* Standard Forms 600 (Chronological Record of Medical Care)
* Standard Forms 513 (Clinical Record - Consultation Sheet)

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 underwent a pre-induction physical on 17 December 1969 at the Armed Forces Examination and Entrance Station, Raleigh, NC, and was noted to have had a scar on the back of his left heel from a previous injury to his heel string.  He was evaluated and cleared by an orthopedic consultant for induction.

3.  He was inducted into the Army of the United States on 22 April 1970 and was trained in and held military occupational specialty 13A (Field Artillery Crewmember).  He arrived in the Republic of Vietnam on 15 September 1970 and he was assigned to Battery B, 1st Battalion, 321st Artillery.

4.  His chronological records of medical care show the following entries:

	a.  On 27 September 1970, he complained of stiffness and numbness in the left heel.  He had previously repaired his Achilles tendon 2 years prior.  His pain resulted from increased marching.

	b.  On 12 October 1970, he fell and injured his left ankle.  He had a swelling over his ankle os calcis.  He received x-rays of the ankle and had a cast placed on it.  He was given medications and was instructed to remain in the rear and return for follow-up.

	c.  On 20 October 1970, his cast was checked and repaired at the 85th Evacuation Hospital and on 30 October 1970 he underwent a follow-up examination of his ankle sprain.

	d.  On 9 November 1970, he was seen at the 85th Evacuation Hospital and received instructions regarding the use of crutches.  The entries on the medical record refer to his 12 October 1970 ankle sprain and recurrent injury to his Achilles tendon.

	e.  On 8 December 1970, he underwent an evaluation for a physical profile.  The attending physician indicated he injured his left foot while in the field.  He had immediate pain in the Achilles tendon area.  This was preceded by an injury to the left Achilles tendon in 1968 during which he received wire sutures to repair the injury followed by 3 months on crutches.

	f.  On 9 December 1970, he was given a physical profile that indicated limited duty caused by a recurrent injury to his left Achilles tendon.

	g.  On 8 January 1971, he was evacuated to Camp Zama, Japan, and on 23 January 1971 he was evacuated to the Naval Hospital at Portsmouth, VA.

	h.  On 11 March 1971, his injury was again evaluated.  The military doctor indicated he had a ruptured left Achilles tendon with pain.  He had previously sustained a laceration of the left Achilles tendon in 1968 prior to entering military service and underwent repair with apparent good results.  However, he ruptured the tendon in Vietnam in October 1970 and has had pain since.

5.  On 30 November 1971, he underwent a separation physical.  He indicated he injured his Achilles tendon in Vietnam and has a physical profile.  The attending physician indicated the applicant had previously injured his Achilles tendon and had it repaired in Elizabeth City, NC.  However, he ruptured his Achilles tendon again in Vietnam and has had recurrent pain.  The military doctor cleared him for separation after he elected to waive disability processing through the Army and to apply for the same through the Veterans Administration.

6.  He was honorably released from active duty on 10 December 1971 and he was transferred to the U.S. Army Reserve Control Group to complete his remaining service obligation.

7.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the National Defense Service Medal, Vietnam Service Medal, and Expert Marksmanship Qualification Badge with Rifle Bar (M-16).

8.  Item 40 (Wounds) of his DA Forms 20 (Enlisted Qualification Record) does not reflect a combat wound or injury and item 41 (Awards and Decorations) of this form does not show award of the Purple Heart.

9.  His records do not contain general orders authorizing him award of the Purple Heart.

10.  His name is not shown on the Vietnam casualty roster.

11.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained while in action against and 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.

DISCUSSION AND CONCLUSIONS:

1.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to 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 sole justification for the award.

2.  The medical documents he submitted show he fell and injured a previously-repaired Achilles tendon.  He underwent treatment and was evacuated to Japan and ultimately to the Portsmouth Naval Hospital.  However, nowhere on any of the medical documents does it show his injury resulted from enemy action.

3.  The criteria for the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required treatment by personnel, and the medical treatment must have been made a matter of official record.

4.  His service record is void of any orders that show he was awarded the Purple Heart, his name is not shown on the Vietnam casualty roster, his DA Form 20 does not indicate any combat wounds, and his medical records do not conclusively reflect he suffered an injury as a result of enemy action and was treated for a combat injury or wound.

5.  Notwithstanding his sincerity, in the absence of additional documentation that conclusively shows he was wounded or injured as a result of enemy action and treated for those wounds, 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)                                         AR20100015590



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ABCMR Record of Proceedings (cont)                                         AR20100015590



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