IN THE CASE OF:	  

		BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100028067 


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 put in for the Purple Heart for shrapnel wounds that he received to his hand on 28 December 1969, but his comrades were more seriously wounded at the time and he felt he did not deserve the Purple Heart for his injury in comparison to others who were injured.  Therefore, he turned the Purple Heart down.  In hindsight, he was wounded and deserves the award.

3.  The applicant provides two witness statements 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's records show he was inducted into the Army of the United States on 17 March 1969 and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  He served in Vietnam from 5 October 1969 to 17 October 1970 and he was assigned to Company B, 2nd Battalion, 3rd Infantry, 199th Infantry Brigade (Separate).

3.  He was honorably released from active duty on 18 October 1970 and transferred to the U.S. Army Reserve to complete his remaining Reserve obligation.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the:

* Vietnam Service Medal
* Vietnam Campaign Medal
* National Defense Service Medal
* Army Commendation Medal with 3rd Oak Leaf Cluster
* Good Conduct Medal
* Bronze Star Medal with "V" Device

4.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) shows a blank entry and item 41 (Awards and Decorations) does not show award of the Purple Heart.

5.  His records do not contain general orders which authorized him award of the Purple Heart.

6.  His name is not shown on the Vietnam casualty roster.

7.  His available medical records in the form of a Standard Form 88 (Report of Medical Examination), dated 18 October 1970, do not list a combat injury/wound or treatment.

8.  During the processing of this case, a member of the Board's staff reviewed 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.  This review failed to reveal orders awarding the applicant the Purple Heart. 

9.  He submitted the following documents:

		a.  A statement, dated 10 March 2009, from Mr. JG who indicates he was an infantry medic for the 199th Light Infantry Brigade, assigned to B Company, 2nd Battalion, 3rd Infantry at the time at the time the applicant was assigned to the unit.  He also states that he was present on 28 December 1969 when the applicant received shrapnel wounds to his hand.  He can attest to the applicant's injury and he believes the applicant should be recognized as being injured and awarded the Purple Heart.

		b.  A statement, dated 10 February 2009, from Mr. RI who states he was also serving with the same unit at the time the applicant was injured.  He also states that on 28 December 1969, their platoon was engaged in enemy contact at which time several members of the group, including himself and the applicant, were wounded.  He was wounded in the shoulder while the applicant was wounded in the hand.  Both wounds were considered serious enough to require medical evacuation.  He (the witness) received the Purple Heart along with many others who were wounded.  The applicant was put in for the Purple Heart but refused to accept it because he felt his injury was slight compared to others.  They were both treated for their wounds and returned to their units.  He personally witnessed the incident in 1969.  

10.  In connection with the events that occurred on 28 December 1969, the applicant was awarded the Bronze Star Medal with "V" Device for heroism in connection with ground combat operations against a hostile force in Vietnam.  General Orders Number 4749, issued by Headquarters, U.S. Army Vietnam on 8 October 1970, cited the following reason:

On that date, [Applicant] was participating in a company operation when his unit made contact with the enemy force of unknown size.  Immediately and without regard to his personal safety, [Applicant] took on an exposed position despite the intense hostile fire in order to effectively engage the enemy.  His alert and aggressive actions contributed significantly to routing the enemy and earned him the respect and admiration of all with who he served.  

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 and 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 military medical personnel, and the medical treatment must have been made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the Purple Heart.

2.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not the sole justification for the award.

3.  The criteria for award of the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.  

4.  The applicant's service in Vietnam and the witness statements he submitted were considered.  Additionally, his sincerity with respect to the turning down the Purple Heart is not in question.  However, notwithstanding the witness statements, the criteria for award of the Purple Heart has not been satisfied in this case.  

5.  His name is not shown on the Vietnam casualty roster; his DA Form 20 does not show any combat wounds; his award of the Bronze Star Medal with "V" Device confirmed his actions on 28 December 1969 but did not address any wound or injury as was customary; and his available medical records do not reflect a combat wound/injury or treatment. 

6.  Again, notwithstanding his sincerity, in the absence of additional documentation that conclusively shows he was wounded or injured as a result of enemy action and treated for those wounds and the treatment was made a matter of official record there is insufficient evidence upon 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:

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)                                         AR20100028067



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100028067



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1