IN THE CASE OF:	  

		BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100028693 


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 for an injury he incurred in Vietnam during the first week in October 1971 while assigned to the 215th Composite Support Battalion, 3d Brigade, 1st Cavalry Division.

2.  He states he has additional information concerning his injury that is not in his records.  He also states there is no medical record and he did not go to a hospital.

3.  He provides a statement from his former company commander and a copy of 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 enlisted in the Regular Army (RA) on 29 August 1957.  He was honorably released from active duty on 28 August 1960 and transferred to the U.S. Army Reserve (USAR).  He was honorably discharged from the USAR on 31 July 1963.  After a break in service, he enlisted in the RA on 7 April 1970.  He was honorably separated on 30 March 1972.  He completed 4 years, 11 months, and 24 days of total active service.

3.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows while assigned to Vietnam, he served with two units subordinate to the 1st Cavalry Division during the period 16 April 1971 to 19 February 1972:  Detachment 3, Headquarters and Headquarters Company, 3d Brigade; and Headquarters and Maintenance Support Company, 3d Brigade (Separate).  

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

5.  His record is void of documentation showing he was awarded the Purple Heart.

6.  His service medical records are not available for review.

7.  His name does not appear on the Vietnam Casualty Roster.

8.  A review of the Awards and Decorations Computer Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Awards and Decorations Branch of the U.S. Army Human Resources Command, failed to reveal orders awarding the applicant the Purple Heart.

9.  In a statement, dated 16 November 2001, his former company commander indicates the company area was the target of several Viet Cong rocket attacks during the first week in October 1971.  He states that during one incident a rocket impacted the hooch where the applicant was sleeping, causing a concussion to reverberate through the hooch.  The impact caused his steel pot to be jarred loose from a nail above his bed.  The steel pot fell and struck him in the groin.  One of his hooch-mates heard him scream and found him with his groin covered in blood.  He (the company commander) was summoned to assist the applicant, and he drove him to a nearby aid station where he was stitched up.  The medic stated the applicant should get a Purple Heart.  

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  To award the Purple Heart, there must be substantiating evidence verifying three criteria:  

   a.  the wound was the result of hostile action; 
   
   b.  the wound required treatment by medical personnel; and
   
   c.  the medical treatment was made a matter of official record.  

2.  In this case, the evidence substantiates that one of the three criteria were met.  Based on the statement from his former company commander, it appears the applicant had an injury that required medical treatment insofar as he received stitches.  

3.  Although there is no apparent reason to question the statement from his former company commander, this statement alone does not definitively show the "steel pot" falling on the applicant's groin while he was asleep in his hooch was the result of hostile action, nor does it constitute an official record of the medical treatment he received.  

4.  In the absence of evidence showing his injury was the result of hostile action and that the medical treatment he received was made a matter of official record, there is insufficient basis for awarding him the Purple Heart.

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)                                         AR20100028693





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ABCMR Record of Proceedings (cont)                                         AR20100028693



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