IN THE CASE OF:
BOARD DATE: 29 September 2011
DOCKET NUMBER: AR20110006417
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 and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show this award.
2. The applicant states he was injured as a result of rocket-propelled grenade shrapnel to his left anterior leg and knee on 25 July 1970.
3. The applicant provides four pages of his medical records.
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. His record shows he was inducted into the Army of the United States on 29 May 1969. He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman). On 28 May 1971, he was honorably released from active duty and he was transferred to the U.S. Army Reserve Control Group (Annual Training) for the remainder of his Reserve obligation. The highest rank/grade he attained while serving on active duty was specialist four/
E-4.
3. Item 30 (Remarks) of his DD Form 214 shows he served in the Republic of Vietnam from 3 May 1970 through 10 October 1970.
4. He provides four pages of medical documentation which show he received a fragment wound to his left popliteal fossa [shallow depression located at the back of the knee joint] on 21 July 1970. His Standard Form 513 (Consultation Sheet), dated 23 September 1970, states "numbness of foot onset 5 days of accident." The provided documentation does not elaborate on how or under what circumstance the shrapnel entered his leg.
5. There is no evidence in the available record and he has not provided any evidence showing he was awarded the Purple Heart.
6. The applicant's name does not appear on the Vietnam casualty roster.
7. 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.
8. 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. Substantiating evidence must be provided to verify 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 further 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 contentions that he should be awarded the Purple Heart and his record should be corrected to show he was awarded the Purple Heart were carefully considered.
2. His name does not appear on the Vietnam casualty roster.
3. The medical evidence provided by the applicant indicates his injury was sustained as the result of an accident and does not indicate it was as a result of hostile action or that he received treatment for injuries sustained as a result of hostile action. Accordingly, based on the foregoing there is insufficient evidence to award him the Purple Heart.
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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
2. 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) AR20110006417
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ABCMR Record of Proceedings (cont) AR20110006417
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