IN THE CASE OF:	  

		BOARD DATE:	    20 January 2011

		DOCKET NUMBER:  AR20100018043 


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 while serving in Vietnam, but he was not awarded the Purple Heart.  He adds he is a disabled American veteran and he is entitled to the Purple Heart.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a Clinical Record Consultation Sheet, and two Department of Veteran Affairs (VA) Rating Decisions.

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 for a period of 3 years on 
19 March 1969.  Upon completion of training he was awarded military occupational specialty 11B (Light Weapons Infantryman).

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

   a.  item 31 (Foreign Service) he served in the Republic of Vietnam from
6 September 1970 through 6 March 1971;

   b.  item 38 (Record of Assignments) he was assigned to:

	    (1)  the 23rd Administrative Replacement Detachment from 12 September through 18 September 1970;

       (2)   Company B, 3rd Battalion, 21st Infantry, 196th Infantry Brigade, from 19 September 1970 through 5 March 1971; 

       (3)   the Medical Holding Company, U.S. Army Hospital, Fort Campbell, KY, as a patient from 6 March through 27 April 1971; and
   
       (4)  Company C, 1st Battalion, 28th Infantry, Fort Riley, KS, from 4 June 1971 through 28 February 1972; 

	c.  item 40 (Wounds) is blank; and

   d.  item 41 (Awards and Decorations) does not list the Purple Heart.

4.  A letter from First Lieutenant James D. C----, Executive Officer, Company B, 3rd Battalion, 21st Infantry, 196th Infantry Brigade, 23rd Infantry Division, to the Commanding General, 1st Infantry Division (Mechanized), Fort Riley, KS, dated 22 July 1971, shows "PFC [Private First Class - applicant's name] was wounded by an accidentally discharged weapon.  There was no hostile enemy activity at the time the wound was received.  PFC [applicant's name] does not [emphasis in original letter] qualify for a Purple Heart Medal."

5.  The applicant's DD Form 214 shows he was honorably released from active duty on 29 February 1972 and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his Reserve obligation:

   a.  At the time he had completed 2 years, 10 months, and 4 days of net active service.

	b.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) does not show award of the Purple Heart.

6.  A review of the Vietnam casualty roster confirmed the applicant's name is not on the 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 pertaining to award of the Purple Heart to the applicant.

8.  In support of his application, the applicant provides the following documents:

   a.   A Standard Form (SF) 513 (Clinical Record - Consultation Sheet) that shows the applicant was seen by a medical doctor at the Orthopedic Clinic, Fort Riley, KS  on 8 February 1972.  It shows a history of a gunshot wound to his left thigh with nerve injury that was diagnosed as hyperplasia.  The medical doctor found the applicant qualified for separation.

   b.  A VA Form 21-6796b (Rating Decision), dated 14 June 1972, that shows in item 20 (Narrative) the entry, "[v]eteran alleges gunshot wound in service in March 1971.  In remarks section of cited VA exam[ination], the veteran was quoted as stating 'I was shot in the left thigh by one of our M-16 rifles.'"  It also shows the VA granted the applicant a rating of 20% for residuals of a gunshot wound to his left thigh with muscle damage.

   c.  A VA Rating Decision, dated 26 March 2010, that shows in the "Subject to Compensation" section the entry, "Residuals of a gunshot wound to the left thigh with slight muscle damage to MG XV and XIII; Service Connected, Vietnam Era, Incurred; 20% from 1 March 1972; 30% from 26 November 1997."

9.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations:

	a.  The Purple Heart is awarded to any member who has been wounded or killed in action.  A wound is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.  In order to support awarding a member the Purple Heart, it is necessary to establish that the wound for which the award is being made required treatment by medical personnel and the medical treatment for the wound or injury received in action must have been made a matter of official record.

   b.  The regulation also provides examples of injuries or wounds which clearly do not justify award of the Purple Heart and specifically cites, in pertinent part, accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the Purple Heart because he was wounded while serving in Vietnam.

2.  The applicant's claim was carefully considered; however, there is no evidence that he was wounded while in action against the enemy or as a result of enemy action.

3.  The evidence of record shows the executive officer of the applicant's former unit in Vietnam confirmed in a letter to the commanding general of his new unit that the applicant was wounded by an accidentally discharged weapon, there was no hostile enemy activity at the time the wound was received, and the applicant was not entitled to the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X____  ___X____  __X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.



2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _ 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)                                         AR20100018043



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ABCMR Record of Proceedings (cont)                                         AR20100018043



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