IN THE CASE OF:	  

		BOARD DATE:	  15 February 2011

		DOCKET NUMBER:  AR20100020032 


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 injured in Vietnam.

3.  The applicant provides the following documents:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Standard Form (SF) 89 (Report of Medical History)
* SF 88 (Report of Medical Examination)
* SF 519 (Radiographic Report)
* Two DA Forms 8-275-3 (Clinical Record Cover Sheet)
* DA Form 8-274 (Medical Condition - Physical Profile Record)
* Two DA Forms 3349 (Medical Condition - Physical Profile Record)
* SF 502 (Narrative Summary)
* SF 600 (Chronological Record of Medical Care)

COINSEL'S REQUEST, STATEMENT, AND EVIDENCE:

Counsel states the applicant should be awarded the Purple Heart.

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 was inducted into the Army of the United States on 25 February 1969 and held military occupational specialty 63B (Wheel Vehicle Mechanic).  He served in Vietnam with Company D, 35th Engineer Battalion, from 2 September 1969 to 1 September 1970.

3.  On 13 September 1969, while in Vietnam, he was detaching a water trailer from the rear of a 2 1/2 ton truck when he caught his right index finger under the tongue of the trailer as it was lowered to the ground.  He severed his finger at the first joint.  He was admitted to the 29th Evacuation Hospital at Binh Thuy for treatment.  

4.  Subsequent to completing his Vietnam tour, he was reassigned to Aberdeen Proving Ground (APG), MD.  He was assigned to Company B, Staff and Faculty Battalion, School Brigade.

5.  While at APG, he underwent several medical examinations.  He provided the following documents:

* DA Form 8-275-3 and DA Form 8-274, dated 15 September 1969, which shows he was admitted to the 29th Evacuation Hospital on 13 September 1969 subsequent to an amputation of the distal portion of his index finger
* DA Forms 3349, dated 16 and 17 November 1969, which show he was assigned limited duty due to an amputation of the index finger
* DA Form 8-275-3, dated 24 December 1969, which shows he sustained an amputation of the index finger and he was transferred to the 249th General Hospital at Camp Drake, Japan
* SF 502, dated 26 December 1969, which shows he suffered an amputation of the index finger and he was issued a permanent physical profile
* SF 519, dated 17 December 1969, which show he suffered an amputation of his index finger
* SF 600, dated on different dates in January and February 1970, following up on his finger injury
* SF 89, dated 5 February 1971, which shows he fractured his right ankle in Vietnam and had his finger amputated
* SF 88, dated 5 February 1971, which shows he suffered a traumatic amputation of the finger and a fracture to his right ankle in Vietnam

6.  He was honorably released from active duty on 24 February 1971 and 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 Republic of Vietnam Campaign Medal with Device (1960).

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

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

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

11.  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 any orders for the Purple Heart for him.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while 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:

	a.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:  injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy generated explosions.

	b.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows:  frostbite or trench foot injuries; heat stroke; food poisoning not caused by enemy agents; chemical, biological, or nuclear agents not released by the enemy; battle fatigue; disease not directly caused by enemy agents; accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; self-inflicted wounds, except when in the heat of battle and not involving gross negligence; post-traumatic stress disorders; and/or jump injuries not caused by enemy action.

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 the sole justification for the award.

2.  The criteria for an award of 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 medical personnel, and the medical treatment must have been made a matter of official record.

3.  In this case, the evidence of record shows the applicant's finger injury resulted from an unfortunate accident.  Nothing in his records shows this injury was a result of enemy action or that he suffered any other injury or wound as a result of enemy action.  Additionally, his 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 document a combat wound or injury.

4.  Notwithstanding his sincerity, in the absence of official documentary evidence such as operation orders, morning reports, after action reports, official orders to corroborate the events that led to his alleged injury, or additional documentation that conclusively shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to award him 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 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)                                         AR20100020032



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ABCMR Record of Proceedings (cont)                                         AR20100020032



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