IN THE CASE OF:	  

		BOARD DATE:	  6 September 2011

		DOCKET NUMBER:  AR20110003061 


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 combat while serving with the 299th Engineer Battalion (Combat) at Dak To in Vietnam on 10 June 1969.

3.  The applicant provides:

* Statement from his former battalion surgeon
* Statement from a former unit member
* Certificate awarding the Purple Heart to an individual other than the applicant
* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) ending 24 August 1966 and on 4 July 1969
* Department of Veterans Affairs rating decision
* Medical documents

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 military records are not available to the Board for review.  However, he provides sufficient documents for the Board to conduct a fair and impartial review of this case.

3.  His DD Form 214 shows he was inducted into the Army of the United States on 26 October 1966 and held military occupational specialty 12B (Combat Engineer).  He was honorably discharged from active duty on 24 August 1967 to accept a commission as an officer of the Army.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 for this period shows the:

* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar

5.  A second DD Form 214 shows he entered active duty on 25 August 1967, as an officer, and he served as a combat engineer unit commander.  He completed 
10 months and 10 days of foreign service in what appears to be Vietnam.  

6.  He was honorably released from active duty on 4 July 1969 in the rank of first lieutenant.  At the time, he was assigned to the 299th Engineer Battalion (Combat), Vietnam, U.S. Army Pacific Command. 

7.  Item 24 of his DD Form 214 for this period shows the:

* National Defense Service Medal
* Vietnam Service Medal
* Vietnam Campaign Medal

8.  There is nothing in two typical documents that confirms his entitlement to the Purple Heart:
* 
His name is not shown on the Vietnam casualty roster
* The Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders for the Purple Heart for him

9.  His service medical records are not available for review with this case.

10.  He provides:

	a.  An undated/unsigned statement from an individual who states he was the battalion surgeon for the 299th Engineer Battalion stationed at Dak To, Vietnam at the time.  During the summer of 1969, the firebase was under rocket fire on a daily basis.  On 10 June 1969, during a rocket attack, the applicant was injured from a rocket explosion.  The applicant suffered a concussion with bloody drainage from his ears.  This individual adds that he triaged the applicant and medically evacuated him to Pleiku.

	b.  an undated statement from a former unit member states he and the applicant were assigned to the 299th Engineer Battalion at Dak To.  On 10 June 1969, their compound came under heavy attack.  The applicant and other Soldiers took cover in their pre-dug holes.  An enemy rocket landed next to them and he and the applicant were both injured.  They were transported to the 71st Evacuation Hospital in Pleiku for treatment.  He remembers that day well and he remembers seeing the applicant bleeding from his ears.  He was awarded his Purple Heart and believes the applicant should be awarded his also.

	c.  evidence in that former unit member's record on the integrated Personnel Electronic Record Management System confirms he was assigned to the applicant's unit, he was awarded the Purple Heart for wounds received on         10 June 1969, and he claimed those wounds occurred while at Dak To when his unit came under a rocket attack

	d.  A certificate, dated 10 July 1969, awarding a former service member (other than the applicant) the Purple Heart for wounds received in action on 10 June 1969.

	e.  Standard Form 600 (Chronological Record of Medical Care), dated 11 June 1979, which shows he sustained an earache to his left ear after being exposed to a rocket explosion on 10 June of an unknown year.

	f.  VA rating decision, dated 14 January 2011, which shows he receives service-connected disability compensation for bilateral hearing loss and post-traumatic stress disorder. 
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 medical personnel, and the medical treatment must have been made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; the individual is entitled to the decoration upon meeting specific criteria.  When contemplating an award of this decoration, the key issue 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.

2.  The criteria for an 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.

3.  In this case, nothing in the available records shows he was injured as a result of enemy action.  Additionally, his name is not listed on the Vietnam casualty roster and his medical records which would have documented the source of an injury and the need for treatment are not available for review with this case:

* The medical document he submitted does not confirm an enemy injury, it simply shows he had an earache after being near a rocket explosion
* The former battalion surgeon does not explain why he did not record the triage he conducted on the applicant or why a record of his medical treatment is not available
* The former unit member does not explain why he was awarded the Purple Heat and the applicant was not; according to him, they were both wounded during the same incident
* Statements based on memory and prepared some 40 years after the event are insufficient by themselves to support an award of the Purple Heart

4.  Notwithstanding the applicant's and/or the former unit members' sincerity, in the absence of official documentary evidence such as after action reports or official orders to corroborate the events that led to his alleged injury, or additional documentation that conclusively shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to award him 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:

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)                                         AR20110003061



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110003061



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1