IN THE CASE OF:	  

		BOARD DATE:	    22 December 2011

		DOCKET NUMBER:  AR20110013287 


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 that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to reflect award of the Republic of Vietnam Campaign Medal and Purple Heart.

2.  The applicant states the above awards are missing from his DD Form 214.

3.  The applicant provides a copy of his 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.  The applicant was inducted into the Army of the United States on 26 August 1970.  He completed basic training at Fort Dix, New Jersey and advanced individual training as a light weapons infantryman at Fort Polk, Louisiana before being transferred to Vietnam on 17 February 1971 for assignment to Company A, 2d Battalion, 502d Infantry Regiment.

3.  On 31 March 1971, he sustained multiple fragment wounds to his lower extremities from a claymore mine explosion.  The circumstances surrounding the incident are not present in the available records; however, his records show that he was medically evacuated to the 95th Evacuation Hospital in Da Nang and then to a hospital in Okinawa. 

4.  On 17 September 1971, he was placed on the Temporary Disability Retired List (TDRL) with an 80% disability rating.  He was removed from the TDRL on
30 April 1973 and permanently retired on 1 May 1973 with a 100% disability rating.

5.  A review of his official records failed to reveal any orders awarding him the Purple Heart.  Additionally, a search 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 Military Awards Branch of the U.S. Army Human Resources Command failed to reveal orders awarding the applicant the Purple Heart.

6.  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.

7.  Included as part of the Department of Defense Appropriations Act for fiscal year 1994 was an amendment to the rules governing award of the Purple Heart.  While the original rules established that the Purple Heart would be awarded to individuals killed or wounded as a result of hostile action the amendment enabled the Secretaries of each department to award the Purple Heart to members of the armed forces who were killed or wounded in action by weapons fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States.  This ruling granted the service Secretaries the authority to award the Purple Heart to individuals directly engaged in armed conflict who were killed or wounded as a result of "friendly fire."

8.  Army Regulation 600-8-22 (Military Awards) states the Republic of Vietnam Campaign Medal with Device (1960) was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973.  Qualifying service included assignment in Vietnam for 6 months or more.  Individuals who qualified for award of the Vietnam Service Medal or the Armed Forces Expeditionary Medal and served for less than 6 months of service but:

* were wounded as a result of hostile action 
* were captured by hostile forces but later escaped or were rescued or released
* were killed in action or otherwise in line of duty are also entitled to award of the Republic of Vietnam Campaign Medal with Device (1960)

9.  The M18A1 Claymore Mine is a directional anti-personnel mine used by the United States Military.  Unlike a conventional land mine, it is command-detonated and directional, meaning it is fired by remote control, shooting a pattern of metal balls into the kill zone like a shotgun.  It is primarily used in ambushes and as an anti-infiltration device (perimeter defense) against enemy infantry.

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant’s claim that his awards of the Purple Heart and the Republic of Vietnam Campaign Medal are not properly reflected on his DD Form 214 is not in doubt.  The evidence of record fails to show and the applicant has not provided orders awarding him the Purple Heart.

2.  The available evidence shows the applicant’s wounds were caused by a claymore mine explosion, which is a U.S. military weapon.  Inasmuch as the specifics of his wounds are not contained in the available records, it must be presumed, given the absence of orders awarding him the Purple Heart, that his wounds were accidental.

3.  In any event, the requirements for award of the Purple Heart are that the wound/injury must have been the resultant cause of enemy action and there is no evidence to show that such was the case.

4.  It is also noted that the Republic of Vietnam Campaign Medal requires service in Vietnam for at least 6 months unless the individual is wounded or injured as a result of enemy action.  The applicant was only in Vietnam for 2 months and 
5 days and there is no evidence that he was wounded as a result of hostile action.

5.  Therefore, in the absence of evidence to show that his wounds were the result of enemy action, there appears to be no basis to award him either the Purple Heart or the Republic of Vietnam Campaign Medal.

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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  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)                                         AR20110013287



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ABCMR Record of Proceedings (cont)                                         AR20110013287



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