IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100015593 


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 attached to the 9th Infantry Division in Vietnam when, in February 1969, his company came under rocket attack and the unit's fuel tanks were hit causing a massive fire.  The attack continued and personnel could do little but watch from the company bunker.  The next day a call went out for volunteers to fight the fire and he volunteered.  They were trying to contain the fire when they again came under rocket attack.  They were able to contain the fire.  He is currently rated [by the Department of Veterans Affairs] for chemical burns he sustained while fighting the fire.

3.  The applicant provides five documents identified in an attachment to his application.

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 18 August 1967.  He was trained in and awarded military occupational specialty 94A (Supplyman) and served in supply specialties throughout his Army service.  He was honorably released from active duty on 8 September 1970 after completing 3 years of active military service.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was assigned for duty in Vietnam with Headquarters and Headquarters Company, 9th Supply and Transport Battalion, 9th Infantry Division, on or about 15 January 1968.  Item 40 (Wounds) is blank and item 41 (Awards and Decorations) does not show he was awarded the Purple Heart.

4.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) does not show award of the Purple Heart in item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized).

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

6.  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.

7.  The applicant provided the following self-authored statement:

I was in a supply and transportation unit in the 9th Infantry Division in Vietnam.  It was at night and our sirens were going off and we were being hit with a rocket attack.  They were hitting our fuel tanks across the street from my company area.  These were mostly aviation fuel as I remember.  We went to our company bunker and we were standing about 100 feet away.  One of the tanks caught fire and it was a huge fire.  We were told you could see the smoke 20 miles away.  The next day my first sergeant asked for volunteers to help fight the fire from the burning gas.  I volunteered.  There [were] about 4 or 5 of us who went over to the fire.  Each one of these tanks, and there [were] four of them, had a concrete wall around it about 3-4 feet high to contain the gas if [it] leaked out.  The tank next to the one on fire was also hit and had lost its fuel into the concrete wall around it but it wasn't on fire…The only thing separating the gas on fire from the gas that was not on fire was the concrete wall between them.  They had a chopper fly in from Saigon about 25 miles to the north of us and spray foam on the fire.  They had us go into the gas that did not catch fire and with a water hose stir up the foam to put out the fire.  We were able to finally get the fire out.  While we were fighting the fire the company bunker came under mortar attack again.  As the mortars hit we were standing in gas almost knee deep and had been for about half an hour or so.  When we came out of there as quickly as we could we all went to sick call.  We took our socks and boots off as soon as we could; we were in a lot of pain.  They gave us cream to put on our feet and legs and we couldn't wear socks or shoes for several weeks.  The skin peeled off my legs after a while.

8.  The applicant provides a page from his service medical records showing he was diagnosed with "gas burns" on both feet on 28 February 1969.  The document includes the statement "JP4 fuel burn during mortar attack this A.M."  The document does not show the treatment he received for his burns.

9.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained 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.

DISCUSSION AND CONCLUSIONS:

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

2.  The available medical documentation corroborates the applicant's statement he received chemical burns caused by exposure to aviation fuel.

3.  The applicant states he and his comrades were directed to stand in fuel as part of the firefighting effort and had been standing in fuel for approximately 30 minutes when they again came under enemy fire.  Although enemy action created circumstances that led to him receiving chemical burns, the applicant's account of events indicates the burns he received were not the result of enemy action but, through no fault of his own, the result of poorly-managed intentional exposure to a known skin irritant.

4.  In the absence of substantiating evidence showing the applicant's injuries were a result of hostile action, there is no basis for 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 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)                                         AR20100015593



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ABCMR Record of Proceedings (cont)                                         AR20100015593



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