IN THE CASE OF:	  

		BOARD DATE:	  24 January 2012

		DOCKET NUMBER:  AR20110014610 


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

2.  The applicant states:

* he served on active duty in the U.S. Army from 3 April 1969 through 2 April 1971
* on 2 February 1970, he incurred and was later diagnosed with residual shell fragment wound, left leg, left foot, left side, and right thigh
* his wounds were the result of a fragmentation hand grenade exploding also injuring another Soldier
* he received medical treatment at the local medical hospital and he was presented the Purple Heart by a captain assigned to the company/
battalion

3.  The applicant provides a copy of his DD Form 214 and a VA Form 21-4138 (Department of Veterans Affairs Statement in Support of Claim).

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 3 April 1969.  He completed training as an armor reconnaissance specialist.  He arrived in Vietnam on 5 September 1969.

3.  Special Order TF - 144 was published on 9 February 1970, ordering the applicant to proceed in an inpatient status on or about 10 February 1970 from the 21st Aeromedical Staging Flight to the 106th General Hospital for further medical treatment.  He returned to the United States on or about 19 February 1970 as a patient at the Medical Holding Company, Fort Gordon, GA.

4.  The applicant's record contains a DA Form 3349 (Medical Condition – Physical Profile Record), dated 16 March 1970, that shows he was placed on a temporary physical profile as a result of multiple fragment wounds to his chest and left leg, and returned to duty.

5.  He was honorably released from active duty on 2 April 1971 at the expiration of his term of service.  His DD Form 214 shows in item 24 (Decorations, Medals, Badges, Commendations, Citation and Campaign Ribbons Awarded or Authorized) the:

* National Defense Service Medal
* Vietnam Service Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-14)
* 1st Class Gunner (Sharpshooter Marksmanship Qualification) Badge with Grenade Bar
* Combat Infantryman Badge (1st Award)
* Army Commendation Medal

6.  There are no orders in the applicant's official military record awarding him the Purple Heart.

7.  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.

8.  The applicant's name is not shown on the Vietnam casualty listing.

9.  On the VA Form 21-4138 the applicant submits he states on 2 February 1970, during morning formation, a fellow Soldier tossed a fragmentation hand grenade to be inspected by a demolition explosive expert inspector.  He states the grenade accidentally fell to the ground, exploding and causing injuries to Soldiers and damaging property.  He states when the grenade exploded he absorbed the tremendous impact of the blast and he received shrapnel in the left foot and extremities, left side, and right thigh.  He states there is still imbedded shrapnel in his body.

10.  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.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart include 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 have been noted and his supporting documents have been considered.

2.  There is evidence in his official military record showing he was medically treated and placed on a temporary physical profile as a result of multiple fragment wounds to his chest and left leg.  However, his records do not show how his injuries were incurred.

3.  On the VA Form 21-4138 provided by the applicant he states that during morning formation, a fellow Soldier tossed a fragmentation hand grenade to be inspected by a demolition explosive expert inspector.  He states the grenade accidentally fell to the ground, exploding and causing injuries to Soldiers and damaging property.

4.  In accordance with the applicable regulation, the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.  Based on the VA Form 21-4138, he was not in action against an enemy at the time his injuries were incurred.  In fact, his injuries were not as a result of hostile action by enemy forces; it was the result of an accident.

5.  There is also no evidence in the available record, nor has the applicant submitted any evidence, showing he was awarded the Purple Heart.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110014610



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ABCMR Record of Proceedings (cont)                                         AR20110014610



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