IN THE CASE OF:	  

		BOARD DATE:	  1 March 2012

		DOCKET NUMBER:  AR20110016507 


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 that he was blown up in a rocket and mortar attack while running to man his gun (4.2 Mortar) in March 1969 in Vietnam.  He sustained an injury to his left knee and he was treated at the 15th Medical Station in Phouc Vihn, Vietnam; he was sent back to his unit in crutches.  His platoon sergeant - who was a racist and an alcoholic - told him at the time that the only way he would receive the Purple Heart would be if they "pull shrapnel out of his axx."  He has statements from his buddies to confirm his injury.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 17 December 1970
* DD Form 214 for the period ending 29 January 1973
* Witness statements

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's records show he enlisted in the Regular Army (RA) for 3 years on 23 May 1968 and he held military occupational specialty 11C (Infantry Indirect Fire Crewman).  

3.  He served in the Republic of Vietnam from on or about 13 December 1968 to 12 December 1969.  He was assigned to the Heavy Mortar Platoon, 2nd Battalion, 18th Infantry, 1st Infantry Division.  

4.  On 17 December 1970, he was honorably discharged from active duty for the purpose of immediate reenlistment.  Item 24 (Decoration, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 for this period of service shows the:

* National Defense Service Medal
* Vietnam Service Medal
* Combat Infantryman Badge
* Republic of Vietnam Campaign Medal with "1960" Device
* Two Overseas Service Bars
* Army Commendation Medal

5.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not show a combat wound and item 41 (Awards and Decorations) of this form does not show award of the Purple Heart.

6.  His name is not shown on the Vietnam casualty roster.

7.  His medical records show he underwent a reenlistment physical prior to his discharge but no combat wound/injury or treatment are listed on this physical.

8.  A review 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 any orders for the Purple Heart for him.

9.  He reenlisted in the RA for 6 years on 18 December 1970 and subsequently served in a variety of stateside assignments, notably at Fort Polk, LA.

10.  He was honorably discharged on 29 January 1973 by reason of hardship.   Item 24 of his DD Form 214 for this period of service listed the same awards as those listed on his previous DD Form 214 in addition to the Army Good Conduct Medal.

11.  On 4 August 1988, by letter, an official at the U.S. Army Reserve Personnel Command, St. Louis, MO, notified him that office was unable to verify his entitlement to the Purple Heart.  He was advised to furnish the specific dates, places, assignments, and treatment records.

12.  He now provides:

	a.  A statement, dated 25 April 1981, from an individual who states he served with the applicant at the time.  He adds that one night in March 1969 they were attacked by mortars and rockets.  Everyone got out of the tent and manned their prospective station when the applicant was injured.  There was no Purple Heart given to him.  He went to the 15th Medical Station in Phouc Vihn for treatment.  The medics bandaged his knee and sent him back to the unit.

	b.  A statement, dated 25 April 1981, from an individual who served in Vietnam with the applicant around the same time.  He states he recalls the applicant being injured while running during an incoming rocket attack shortly after the new year (1969).  He also recalls the applicant being treated at the aid station and then returned to his unit.

13.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that 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:

	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 an 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 Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting a specific criteria.  The key issue that must be taken into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but it is not the sole justification for the award.

2.  The criteria for an award of 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 treatment by medical personnel, and the medical treatment must have been made a matter of official record.

3.  There is nothing in his service records that shows he was injured as a result of enemy action or friendly fire in the heat of battle.  Additionally, his name is not shown on the Vietnam casualty roster.  His DA Form 20 does not show any combat wounds and his available medical records do not document a combat wound or injury.

4.  Notwithstanding his sincerity as well as that of his buddies, in the absence of official documentary evidence to corroborate the events that led to his alleged injury, or additional documentation that conclusively shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which 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:

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)                                         AR20110016507



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110016507



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1