BOARD DATE:	  27 September 2011

		DOCKET NUMBER:  AR20110004924 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Purple Heart.

2.  The applicant states, in effect, he received injuries while engaged with hostile forces on 29 July 1971, while assigned as a member of the 120th Assault Helicopter Company, 1st Aviation Brigade, Nha Be, Republic of South Vietnam.  He was flying in a UH-1B gunship.  While he was standing with his right foot on the rocket pod pylon, the rockets were fired at the enemy.  That resulted in one of the white hot caps from the rocket to strike him in the leg while he was engaging the enemy with his M-60 machine gun.

3.  The applicant provides:

* personal statements
* a medical treatment excerpt from his medical records
* DD Form 214

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.  Records show the applicant enlisted in the Army on 20 June 1969.  He completed training and was awarded military occupational specialty 67N (UH-1 Helicopter Repairman).  The highest rank/pay grade he attained while serving on active duty was specialist five/E-5.  

3.  Item 31 (Foreign Service) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam during the period 26 October 1970 through 19 September 1971.

4.  Item 38 (Record of Assignment) of the applicant's DA Form 20 shows that during his tour in the Republic of Vietnam, he was assigned to the following units for the periods indicated:

* Headquarters and Headquarters Company, 1st Aviation Brigade, 4 November 1970 through 14 December 1970
* 5th Aviation Detachment, 210th Combat Artillery Battalion, 15 December 1970 through 7 June 1971
* 120th Aviation Company, 8 June 1971 through 19 September 1971

5.  Item 38 of his DA Form 20 shows he was assigned in a patient status at a medical treatment during the period 20 September 1971 through 12 October 1971. 

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

7.  Item 41 (Awards and Decorations) of his DA Form 20 does not show award of the Purple Heart.

8.  There is no evidence in the available records showing he was awarded the Purple Heart.

9.  There is no evidence in the available record showing he sustained any injuries as a result of hostile action or that he was treated for wounds sustained as a result of hostile action.  Additionally, his name does not appear on the Vietnam Casualty Roster.

10.  A review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U. S. Army Human Resources Command, failed to reveal any orders for the Purple Heart.

11.  The applicant provided an excerpt from his medical records, DD Form 214, and a personal statement explaining how his injury occurred.

12.  Army Regulation 600-8-22 (Military Awards) provides 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.  This regulation also provides for award of the Purple Heart to individuals wounded or killed as a result of "friendly fire" in the "heat of battle" as long as the "friendly" projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.  It also provides examples of injuries or wounds which clearly do not justify award of the Purple Heart.  This includes accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his DD Form 214 to show award of the Purple Heart was carefully considered; however, there is insufficient evidence to support his request.

2.  Although the applicant's DA Form 20 shows he was in a patient status, there is no evidence in the available military records which shows he sustained an injury as a result of hostile action or that he received treatment for injuries sustained as a result of hostile action.

3.  The scenario he described indicated he was accidently injured.  He was not hit by the rocket fired from the UH-1B, which would have been the "friendly projectile" released with the intent of destroying the enemy.  He was struck by one of the white hot caps from the rocket, which was not the projectile meant to destroy the enemy.

4.  Based on the foregoing, there is insufficient evidence to award him the Purple Heart.

5.  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:

________  ________  ________  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)                                         AR20110004924



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ABCMR Record of Proceedings (cont)                                         AR20110004924



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