IN THE CASE OF:	  

		BOARD DATE:	    24 March 2011

		DOCKET NUMBER:  AR20100022224 


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 (Report of Transfer or Discharge) to show award of the Purple Heart.

2.  The applicant states:

* he was wounded in action on 12 July 1970 when he suffered a traumatic amputation of his right foot during an Explosive Ordnance Disposal (EOD) breaching operation at Landing Zone (LZ) English in Vietnam
* he was awarded the Purple Heart through the 533rd Ordnance Detachment (EOD Control) in 1971, but he never received the award and it has never been reflected on his DD Form 214

3.  The applicant provides:

* excerpts from the 533rd Ordnance Detachment EOD activities for the period 1 July - 31 December 1970
* clinical records, dated 13 July 1970 and 26 July 1970
* a Patient Admission Form
* his DD Form 214 


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.  He was inducted into the Army of the United States on 28 March 1967.  He arrived in Vietnam on 16 November 1968 and was assigned to the 25th Ordnance Detachment as an EOD specialist on 18 November 1968.  On 
27 September 1969, while in Vietnam, he was honorably discharged for enlistment in the Regular Army (RA).  

3.  His DD Form 214 for the period ending 27 September 1969 does not show the Purple Heart as an authorized award.

4.  He enlisted in the RA on 28 September 1969 for a period of 4 years.  He was assigned to the 170th Ordnance Detachment in Vietnam from 7 February 1970 through 30 April 1970.  He was assigned to the 25th Ordnance Detachment in Vietnam from 1 May 1970 until he was wounded on 12 July 1970 and he was transferred to the United States on 23 July 1970 for further medical treatment.  On 12 November 1970, he was honorably retired by reason of permanent physical disability.

5.  His DD Form 214 for the period ending 12 November 1970 does not show the Purple Heart as an authorized award.

6.  There are no orders for the Purple Heart in the available records.  However, the applicant provided a clinical record, dated 26 July 1970, which shows he stepped on a small mine which exploded under his right heal resulting in a traumatic amputation of the right foot and an evisceration of the left testicle on 
12 July 1970 in Vietnam.  This medical record shows these injuries/diagnoses "IRHA" [injury result of hostile action].  His Medical Board Proceedings (MEB), dated 24 September 1970, also shows he was injured when he stepped on a mine "IRHA" on 12 July 1970 in Vietnam.

7.  A message, dated July 1970, states he was clearing a mine field and he detonated a friendly mine on 12 July 1970.

8.  Item 20 (Wounds) of his DA Form 20 (Enlisted Qualification Record) shows he sustained ankle amputation of right foot and traumatic scrotal repair archectomy left testicle on 12 July 1970.

9.  His name is listed on the Vietnam casualty roster under casualty status code 53 [non-hostile wounded/ill/injured] with a date of casualty as 12 July 1970.

10.  He provided excerpts from the 533rd Ordnance Detachment EOD Activities for the period 1 July 1970 to 31 December 1970 which state, in pertinent part:

* on 12 July 1970 he was injured while removing mines from perimeter wire at LZ English
* he accidentally stepped upon another M14 resulting in the amputation of his right foot
* he would be awarded the Purple Heart

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 United States Army 
Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant.

12.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained 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.  The regulation states that accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action are examples of injuries or wounds that clearly do not justify award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

There are no orders for the Purple Heart and there are discrepancies in his records regarding whether his injuries were the result of hostile or non-hostile action.  Annotations in his medical record indicate that his injury was the result of hostile action.  However, information generated by his unit, and provided for entry on the Vietnam casualty roster, shows he was accidentally injured on 12 July 1970 in Vietnam while removing a friendly mine, not as a result of hostile action.  The latter information was authenticated by his commander and is accepted as more plausible in determining the events on that day.  Therefore, there is insufficient evidence on 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 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)                                         AR20100022224



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ABCMR Record of Proceedings (cont)                                         AR20100022224



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