BOARD DATE:	  8 March 2011

		DOCKET NUMBER:  AR20100022457 


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 (PH).

2.  The applicant states he believes he meets the friendly fire criteria to be awarded the PH based on an injury he sustained to his ears while providing indirect howitzer fire on enemy forces in the Republic of Vietnam (RVN) on 
28 August 1968.  He claims that during the constant barrage of fire that lasted for three hours, he sustained ruptured/perforated ear drums as a result of the concussion of the blasts.  He states the following morning he was medically evacuated to the rear detachment where he was informed the battery was instrumental in causing damage to the enemy fortifications.  He claims he never returned to the battery and he was ordered medically evacuated by the battalion doctor.  He claims in addition to the initial injury, he suffered secondary infections and remained hospitalized until he was honorably discharged on 3 December 1968.

3.  The applicant provides a self-authored letter and the 4 exhibits identified in the letter.

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 17 April 1966 for a period of
3 years.  He was trained in and awarded military occupational specialty (MOS) 13B (Field Artillery Crewman).  

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 2 November 1966 to 24 October 1967 and from 27 July 1968 to 3 November 1968.

4.  Item 40 (Wounds) of the DA Form 20 is blank.

5.  On 3 December 1968, the applicant was honorably released from active duty, in the rank/grade of corporal (CPL)/E-4, after completing 2 years, 7 months, and 15 days of total active service.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time does not include the PH in the list of awards contained in item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized).  

6.  The record shows the applicant again enlisted in the Regular Army on          19 September 1975 and he served until 31 January 1987, at which time he was honorably retired for length of service, in the rank/grade of sergeant first class (SFC)/E-7, after completing a total of 20 years, 2 months, and 8 days of total active service.  

7.  The applicant provides medical treatment records that show he was treated on 28 August 1968 for deafness he suffered while at a firing position when a
.155 Howitzer went off.  During a treatment session on 29 August 1968, it was noted his hearing was gradually returning.  He provides additional medical treatment records showing he continued being treated for this condition through November 1968.



8.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam casualty roster.  There is no entry pertaining to the applicant on this roster.

9.  Army Regulation 600-8-22 (Military Awards) states the PH is authorized for members wounded in action.  In order to support award of the PH there must be evidence the wound for which the award is being made was received as a result of enemy action; that it required treatment by military medical personnel; and a record of the medical treatment must have be made a matter of official record.  

10.  Army Regulation 600-8-22 further states that members killed or wounded in action by friendly fire will be awarded the PH in the same manner as a member who is killed or wounded in action as the result of an act of an enemy of the United States.  Individuals wounded or killed as a result of “friendly fire” in the “heat of battle” will be awarded the Purple Heart as long as the “friendly” projectile or agent was released with the full intent of inflicting damage on or destroying enemy troops or equipment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be awarded the PH for an ear injury he sustained while on a firing position in the RVN in August 1968 has been carefully considered.  

2.  The evidence of record and independent evidence submitted by the applicant confirms he sustained an ear injury resulting from the explosion of a .155 Howitzer and he was treated for this injury on 28 August 1968.  The medical treatment record of 28 August 1968 shows his injury was the result of an explosion of a .155 Howitzer at his firing position.  

3.  While concussion injuries received as a result of enemy explosions would support award of the PH, accidental explosive injuries would not.  

4.  Even if the applicant's ear drum injury was the result of a three-hour barrage of fire, award of the PH based upon friendly fire requires that the "friendly" projectile or agent be released with the full intent of inflicting damage on or destroying enemy troops or equipment.  The concussion of the .155 Howitzer blasts was not the projectile or agent that was released with the intent of destroying the enemy.

5.  Regrettably, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  

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)                                         AR20100022457



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ABCMR Record of Proceedings (cont)                                         AR20100022457



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