IN THE CASE OF:	  

		BOARD DATE:	  13 March 2012

		DOCKET NUMBER:  AR20110018243 


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 he did not receive the Purple Heart because his shrapnel wound was the result of friendly fire during a combat mission.  However, Department of Defense Instructions (DODI) 1348.33-M (The Manual of Military Decorations and Awards), AP1.1.2.21.2.8, states a service member wounded by friendly fire while engaged in armed conflict is eligible for the Purple Heart.

3.  The applicant provides his DD Form 214, Department of Veterans Affairs and Veterans Administration identification cards, a newspaper article, and a self authored statement.

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 enlisted in the Regular Army on 4 November 1968 for a period of 2 years.  He completed training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant was assigned to the following units during the period 31 August to 23 December 1969:

* Company B, 4th Battalion, 12th Infantry, 199th Infantry Brigade, Republic of Vietnam (RVN)
* 249th General Support Hospital, Japan, in a patient status

4.  On 4 January 1970, the applicant was assigned to the U.S. Army Medical Hold Detachment, St Albans, NY in a patient status.

5.  In a letter the applicant wrote to his sister he detailed the severity of his neck injury which made it hard for him to move and caused him extreme pain.  He requested her assistance to have him moved to a hospital in Japan and then back stateside.  He contended he needed to see a neurologist but felt the doctors were not willing to assist him.

6.  A medical inquiry message, dated 13 December 1969, was drafted in response to the sister's inquiry.  It stated the applicant was a patient at 93rd Evacuation Hospital due to a whip lash injury he sustained in a truck accident.  He was listed in good condition and on bed rest with a planned disposition of being returned to duty.  In addition, he was also suffering from combat fatigue brought on by the following three events which occurred over a short period of time:

* he killed his first enemy
* his buddy was killed
* he was involved in a truck accident

7.  There are no medical records available for review pertaining to his truck accident or a friendly fire incident.  At the time of his separation physical he did not report a shrapnel injury to his neck on his Standard Form 89 (Report of Medical History).

8.  On 3 November 1970, he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training).  He had completed 2 years of active duty service.

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

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 U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant.

11.  The applicant provides a self authored statement in which he contends that on 11 November 1969, he walked the point in the morning outside Firebase Nancy in Dinh Quan province in the central highland jungle of RVN.  In the evening he was relieved by another Soldier, BG, and they were ambushed by a sniper.  The other Soldier was killed and he was sent out 100 yards in the direction of the sniper as he was next in line.  An artillery fire mission was called in and the spotter round went off over his position.  Artillery was then walked in on top of him.  He remembers being lifted off the ground, and not being able to hear for awhile.  He had red hot shrapnel in his neck and the medic pulled it out and patched him up.  They continued the search and destroy mission but because it was friendly fire he did not receive a Purple Heart.

12.  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."

13.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded to individuals wounded or killed as a result of “friendly fire” in the “heat of battle” as long as the “friendly” projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.  The wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests award of the Purple Heart and correction of his
DD Form 214 to show this award.



2.  The criteria for an award of the Purple Heart for injuries sustained by friendly fire requires the submission of substantiating evidence to verify that the injury/wound was the result of friendly fire in the heat of battle and the projectile was intended to inflict damage or destroy enemy troops or equipment. In addition the medical treatment must have been made a matter of official record.

3.  Although the applicant contends his injury was caused by friendly fire, the evidence of record shows that as the result of a truck accident he suffered a whip lash injury.  There is insufficient evidence to substantiate a shrapnel injury to his neck caused by enemy or friendly fire.  In the absence of such evidence, there is no basis to show he was awarded a Purple Heart.

4.  In view of the above, his request should be denied.

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)                                         AR20110018243





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ABCMR Record of Proceedings (cont)                                         AR20110018243



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