BOARD DATE:	  7 February 2012

		DOCKET NUMBER:  AR20110015150 


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 or about March 1970, he received a gunshot wound while patrolling a mountainous area with the 1st Platoon of B Company,
3rd Battalion, 506th Infantry.  The area contained many caves and tunnels.  He was shot in the right thumb.  He did not require to be medically evacuated and the company medical specialist, "Doc N--h" patched him up until he could be transported by helicopter to the aid station.  He spent 3 days in the rear where he received treatment to his wound.  However, since his company was short of men, he went back to the field with his unit.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Statement from his former company commander
* Statement from his former unit medic

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 25 January 1969 and he held military occupational specialty 11B (Light Weapons Infantryman).  He served in Vietnam with Company B, 3rd Battalion, 506th Infantry, from 14 December 1969 to 14 November 1970.

3.  He was honorably released from active duty on 24 June 1971 at the expiration of his term of service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not show the Purple Heart.

4.  There is no evidence of record that shows he was injured or wounded as a result of hostile action or that he was recommended for or awarded the Purple Heart:

* Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not show a combat wound or injury
* His records do not contain general orders awarding him the Purple Heart
* His name is not shown on the Vietnam casualty listing
* The Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders for the Purple Heart pertaining to the applicant

5.  The available medical records show the following entries pertaining to the applicant:

* 7 March 1970 - sustained a superficial wound to his right thumb from a
.45 Caliber pistol.  He was treated at the battalion aid station by a medic named Specialist Five C------l
* 8 and 9 March 1970 - he received follow-up treatment at the same station by the same medic
* 
22 September 1970 – alleged a reaction involving left knee area; appeared tender; evaluated at the 85th Evacuation Hospital
* 23 through 29 September 1970, follow-up evaluation at the
85th Evacuation Hospital
* 6 October 1970 – rash follow up at the 85th Evacuation Hospital
* 31 October 1970 – twisted right ankle, bandaged, and disposed to light duty

6.  He submitted two statements:

	a.  In one statement, dated 29 June 2011, his former company commander stated that in March 1970, while searching caves for enemy Soldiers/equipment, the applicant was shot in the thumb.  The company medic "Doc N--h" applied aid and bandaged the wound until the applicant was transported to the rear for additional treatment.  The paperwork for award of the Purple Heart was never completed.

	b.  In a second statement, dated 7 July 2011, the author, "Doc N--h" states he was the combat medic assigned to Company B at the time.  At some point in March 1970, the unit was searching a mountainous area known as Hill 474 in the Binh Dinh province of the An Loa Valley.  The applicant would go into the tunnels and destroy the enemy.  While searching the caves, he was shot in the thumb.  He, the author, applied first aid and transported him to the rear for treatment by the doctors.  The applicant returned to the unit 3 days later due to a shortage of men.

7.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained while in action against and 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.

	a.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:  injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy generated explosions.

	b.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows:  frostbite or trench foot injuries; heat stroke; food 

poisoning not caused by enemy agents; chemical, biological, or nuclear agents not released by the enemy; battle fatigue; disease not directly caused by enemy agents; accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; self-inflicted wounds, except when in the heat of battle and not involving gross negligence; post-traumatic stress disorders; and/or jump injuries not caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The criteria for the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.

2.  The applicant's available medical record shows he sustained a wound from a .45 caliber pistol on 7 March 1970 and he received treatment at the battalion aid station.  However, the source of this injury is not listed.  Additionally, the statement from his former company commander and unit combat medic confirm the applicant was injured in March 1970; however, neither statement indicated the injury resulted from hostile action.

3.  The injury is further complicated by the fact that his name is not listed on the Vietnam casualty listing and item 40 of his DA Form 20 does not show a combat wound.  Additionally, the very same two individuals – company commander and unit medic – who were in the best position to initiate necessary paperwork for the Purple Heart failed to do so.

4.  Notwithstanding the applicant's and the former unit members' contention and sincerity, in the absence of additional documentation that conclusively confirms the pistol injury was caused by the enemy/as a result of enemy action, there is insufficient evidence upon which to base award of the Purple Heart in this case.

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)                                         AR20110015150



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ABCMR Record of Proceedings (cont)                                         AR20110015150



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