IN THE CASE OF:
BOARD DATE: 26 April 2011
DOCKET NUMBER: AR20100026170
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, in effect, that he was wounded while on a search and destroy mission in Vietnam. He was firing his M-79 grenade launcher into huts instead of going into them to search. He was standing too close to a hut when he fired and was hit by the shrapnel. He was medically evacuated.
3. The applicant provides copies of the daily staff journal of his unit and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
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 in the Army of the United States on 24 July 1969. He completed training and he was awarded military occupational specialty (MOS) 91A (Medical Corpsman).
3. Records show the applicant served in Vietnam from 5 January 1970 to 24 November 1970 and was assigned to Headquarters and Headquarters Company, 4th Battalion, 3d Infantry, 11th Brigade.
4. His DA Form 20 (Enlisted Qualification Record) is blank in item 40 (Wounds), and item 41 (Awards and Decorations) lists the National Defense Service Medal, Army Commendation Medal, and Army Commendation Medal (Oak Leaf Cluster).
5. The applicant's DD Form 214 shows he was honorably released from active duty on 23 July 1971 by reason of expiration of term of service. He completed 2 years of total active service.
6. 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 with two bronze service stars, Vietnam Campaign Medal with Device (1960), Sharpshooter Marksmanship Qualification Badge with Rifle Bar, Expert Marksmanship Qualification Badge with Automatic Rifle Bar, one overseas service bar, and Army Commendation Medal (2nd Oak Leaf Cluster).
7. His name does not appear on the Vietnam casualty listing.
8. In support of his request the applicant provided a copy of the daily staff journal page for 4th Battalion, 3d Infantry, for 0001 hours, 13 March 1970, to 2400 hours, 13 March 1970. Item 57 of the journal shows that at "1739 hours Company C requested dustoff [a medical evacuation helicopter] for enlisted man with shrapnel wound in left forearm. Dustoff estimated time of arrival (ETA) 30 minutes. L____, G____, PFC, (applicant's social security number), wound was from friendly fire (Recon by fire). Item 59 shows that at 1805 hours Reference item #57, dustoff complete."
9. Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained in action against an enemy or as a result of hostile action. A wound is defined as an injury to any part of the body from an outside force or agent sustained under hostile action. A physical lesion is not required, however, the wound for which the award is made must have required treatment by medical personnel and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. Neither the applicant's available records nor the Vietnam casualty listing provide any evidence that the applicant was wounded, that those wounds were the result of hostile action that required treatment by medical personnel, or that the resulting medical treatment was made a matter of official record.
2. The page from his unit's daily staff journal shows a dustoff was requested for him and the dust off mission was completed. There is no available evidence to show that his medical treatment was made a matter of official record.
3. Furthermore, the situation the applicant describes does not qualify for the Purple Heart. He states he was searching for the enemy. He does not even claim any were present. The available evidence does not show his wound was sustained in action against an enemy or as a result of hostile 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) AR20100015543
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ABCMR Record of Proceedings (cont) AR20100026170
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