IN THE CASE OF:	  

		BOARD DATE:	  6 December 2011

		DOCKET NUMBER:  AR20110011079 


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, in effect, in the summer of 1966 while serving in Vietnam with Company A, 1st Battalion, 28th Infantry Regiment, 1st Infantry Division, an immersion heater blew up in his face causing injuries to his left eye and ear.  He was medically evacuated to the 13th Field Hospital.  He contends that the military has been stating they have no record of this incident; however, he has found at least three veterans from his old unit who he claims witnessed the incident.

3.  The applicant provides no additional documentation.

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.  On 28 January 1965, the applicant enlisted in the Regular Army for a period of 3 years.  He completed his initial training and he was awarded military occupational specialty 11C (Infantryman Indirect Fire).  He was subsequently assigned to Company A, 1st Battalion, 28th Infantry Regiment, located at Fort Riley, KS.

3.  On 10 October 1965, the applicant moved with his unit for duty in Vietnam where he served as a mortar gunner.

4.  On 8 September 1966, the applicant returned to the United States for duty at Fort Dix, NJ, where he initially served as a drill sergeant for 3 months and then as an ammunition records clerk.

5.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

* item 40 (Wounds) no entry
* item 41 (Awards and Decorations) the:

* Combat Infantryman Badge
* Vietnam Service Medal
* National Defense Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Army Good Conduct Medal (1st Award)

6.  On 27 January 1968, the applicant was honorably released from active duty at the expiration of his term of service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  The highest rank/grade he attained during his service was specialist five (SP5)/E-5.  He completed 3 years of total active service.

7.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the same awards as listed on his DA Form 20.

8.  The applicant's service medical records are not available for review; however, his official military personnel file (OMPF) contains a Standard Form (SF) 88 (Report of Medical Examination) and SF 89 (Report of Medical History) that was completed 12 September and 24 October 1967 for the purpose of separation and/or reenlistment.  These forms show the only abnormality mentioned was low 


back pain that had been aggravated by a car accident a few days earlier.  There is no mention of or discussion about any injuries involving his eye or ear while in the RVN.

9.  Review of The Adjutant General's Office, Casualty Division's Vietnam casualty listing does not show the applicant's name.

10.  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 United States Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant.

11.  Army Regulation 600-8-22 provides for award of the Purple Heart to a member of the Armed Force or any civilian national of the United States who, while serving in any capacity with one of the U.S. Armed Services after 5 April 1917, has been wounded or killed, or who has died or may die after being wounded in any action against an enemy of the U.S.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart 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 contends he should be awarded the Purple Heart for injuries received when an immersion heater blew up in his face in Vietnam.

2.  There are no available general orders showing the applicant was awarded the Purple Heart.  The applicant's name is not listed on the Vietnam casualty listing. Item 40 of his DA Form 20 does not show a record of any wounds received as a result of hostile action.

3.  The circumstances and injuries described by the applicant appear to have resulted from an accident and not from hostile action.  Accordingly, such injuries would not qualify for award of the Purple Heart.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.


5.  The applicant and all others concerned should 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.

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)                                         AR20110011079



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ABCMR Record of Proceedings (cont)                                         AR20110011079



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