IN THE CASE OF:	  

		BOARD DATE:	  13 April 2011

		DOCKET NUMBER:  AR20100024833 


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 in Vietnam and his medical records prove it.

3.  The applicant provides a Standard Form 600 (Chronological Record of Medical Care) and a Standard Form 513 (Consultation Sheet).

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 record shows he enlisted in the Regular Army on 30 March 1959 and held military occupational specialty (MOS) 11B (Light Weapons Infantryman) and 76Y (Unit Supply Specialist). 
3.  He served in Vietnam from 17 December 1966 through 16 December 1967 and from 24 November 1970 through 13 September 1971.  From:

* 17 January 1966 – 16 December 1967 he was assigned to Company B and C, 4th Battalion, 7th Infantry Regiment; and 4th Battalion, 503rd Infantry Regiment
* 30 November 1970 - 13 September 1971 he was assigned to the U.S. Army Military Assistance Command Vietnam

4.  He served through multiple reenlistments and/or extensions and he was retired, on 31 August 1980 in the rank/grade of master sergeant/E-8.  He completed 21 years, 2 months, and 15 days of creditable active service.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 August 1981, shows the National Defense Service Medal, Master Parachutist Badge, Vietnam Service Medal, Combat Infantryman Badge, Republic of Vietnam Campaign Medal with Device (1960), Bronze Star Medal, Republic of Vietnam Ranger Badge, Technical Service Medal 3rd Class, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Army Good Conduct Medal (4th Award).

6.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) is blank.

7.  The Vietnam casualty listing, a compilation of all casualties during the Vietnam War, does not list him as a casualty.

8.  Review of the Awards and Decorations Computer Assisted Retrieval System maintained by the Military Awards Branch of the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders for the Purple Heart pertaining to the applicant.

9.  The applicant provides a Standard Form 600 that shows he was treated on 12 November 1967 for ear trouble (loss of hearing) at the 616th Medical Company, Vietnam.  The entry states, in pertinent part, the applicant had hearing loss in the left ear since mortar rounds fell; he was referred to the Ears, Nose, and Throat (ENT) Clinic.

10.  He also provides a Standard Form 513, dated 14 February 1968, wherein a medical officer at Womack Army Hospital, Fort Bragg, NC, requests he be seen 

at Walter Reed Medical Center, Washington, DC.  The consultation request states, in part, the applicant was in close proximity to a mortar blast in Vietnam in November 1967 in which several members of his unit were severely injured.  The applicant sustained minor wounds and was noted to have some bleeding in the left ear canal at that time, but no definite perforation was noted. 

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The criteria for award of the Purple Heart requires a Soldier to have been injured or wounded by hostile action, the wound must have required treatment by medical personnel, and the medical treatment for wounds or injuries received in action must have been made a matter of official record.

2.  The available evidence indicates he sustained an injury to his left ear while in close proximity to a mortar blast in Vietnam.  However, there is no evidence in his record and he did not provide any evidence that this mortar blast and resultant injury were caused by a hostile act on the part of the enemy.  In the absence of documentary evidence that shows he was wounded as a result of hostile action and treated for those wounds, regrettably, there is insufficient evidence upon which to base award of the Purple Heart.

3.  Nevertheless, 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.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board believed that there was sufficient evidence to show the applicant was wounded as a result of friendly fire.  As a platoon sergeant at the time, assigned to the 9th Infantry in an 11B position, the Board believed it is reasonable to presume the short round that caused the injury to his left ear was being fired at the enemy.  Therefore, he met the "friendly fire" provisions for award of the Purple Heart.

2.  Therefore, the Board determined that the evidence presented was sufficient to warrant a recommendation for full relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding him the Purple Heart for wounds received on 12 November 1967 and adding the Purple Heart to his last DD Form 214.




      _______ _   _XXX______   ___
               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)                                         AR20100024833





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ABCMR Record of Proceedings (cont)                                         AR20100024833



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