BOARD DATE:	  12 April 2011

		DOCKET NUMBER:  AR20100023311 


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 when they were attacked while on patrol.  The battalion surgeon was flown in.  He bandaged the applicant's wounds and returned him to duty.  That night his face began to swell and ooze pus.  He was sent to the rear.  X-rays showed four retained fragments.  They tried to remove the fragments.  After a week he was stitched up and returned to his unit where he was to remain for another week and have the stitches removed.  While there, he came down with strep throat and then returned to the United States on a compassionate leave.  He subsequently went to the Department of Veterans Affairs (VA) where one fragment was removed, but three are still imbedded.  He now gets a 10 percent (%) disability rating percentage from the VA.

3.  The applicant provides copies of a:

* photograph [presumed to be a metal fragment]
* DA Form 8-275-3 (Clinical Record Cover Sheet), dated 3 October 1969
* Standard Form 89 (Report of Medical History) discharge examination, dated 4 March 1970


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 was inducted into the Army of the United States on 19 February 1969.  He completed training as an infantryman and he was placed on orders for Vietnam.

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

* no entry in item 40 (Wounds)
* no Purple Heart in item 41 (Awards and Decorations)

4.  He was awarded the Combat Infantryman Badge and the Army Commendation Medal by orders issued by the 101st Airborne Division.

5.  He served in Vietnam from 29 August 1969 to 27 February 1970.  On 9 March 1970 he was released from active duty by reason of hardship and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Report of Transferor Discharge) he was issued at the time, as corrected by a DD Form 215 (Correction to DD Form 214), dated 24 February 2006, shows the:

* National Defense Service Medal
* Combat Infantryman Badge
* Army Commendation Medal
* Army Good Conduct Medal
* Vietnam Service Medal with two bronze service stars


* Republic of Vietnam Campaign with Device (1960)
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation

6.  Service medical records show entries made at the 326th Medical Battalion.  A 26 September 1969 entry reads, "FW [fragment wound(s)] from cooked off M-16 round.  Acute swelling."  Follow-on entries on that date place the incident "three days ago" and describe x-ray findings and stitches.  On 7 October the stitches were removed.

7.  The correspondence concerning the applicant's hardship discharge includes a letter from a civilian minister familiar with the applicant's spouse and the applicant's Division Chaplain in Vietnam.  The minister relates that, "Recently [the applicant] was injured in an accident.  A gun was fired and he received some fragments in the temple area of his head…."

8.  The applicant's name does not appear on the Vietnam casualty list.  Additionally, review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), 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 pertaining to the applicant.

9.  Regulatory guidance relating to award of the Purple Heart includes:

   a.  Army Regulation 600-8-22 (Military Awards) states 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.

   b.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9 of the version in effect at the time, stated a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization would be entered in item 40 of the DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in item 40.

   c.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) stated the authority to award the Purple Heart was delegated to hospital 


commanders.  It directed that all personnel treated and released within 24 hours would be awarded the Purple Heart by the organization to which the individual was assigned.  Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam would be awarded the Purple Heart directly by the hospital commander rendering treatment.

DISCUSSION AND CONCLUSIONS:

1.  There is no available evidence to substantiate that the applicant's wound was sustained while he was in action against the enemy or as the result of enemy action.  The medical record entry, "cooked off M-16 round," certainly infers an accident.

2.  The USARV awards regulation gave the responsibility for awarding the Purple Heart to individuals who were not hospitalized for 24 hours or more to the local award authority.  The fact that the applicant received the Combat Infantryman Badge and the Army Commendation Medal from the 101st Airborne Division indicates that evidence of his record and performance was appropriately forwarded upward from his company and battalion to the division headquarters.  It is reasonable to presume that he would have received the Purple Heart had it been appropriate.

3.  There is insufficient evidence to conclude that the applicant's wounds occurred while he was in action against an enemy or were the result of enemy action.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100023311



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ABCMR Record of Proceedings (cont)                                         AR20100023311



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