IN THE CASE OF:	  

		BOARD DATE:	  3 May 2012

		DOCKET NUMBER:  AR20110023324 


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 and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show it. 

2.  The applicant states he served in Vietnam from 1968 to 1969 and he was wounded in a firefight.  He spent time in a hospital in Vietnam and he was later transferred to Japan for additional treatment.  He was told he would receive the Purple Heart but he never did.  In January 1969, a mortar round landed near a bunker and knocked him unconscious.  He was medically evacuated and he was told that he was paralyzed.  Medical personnel treated him in country and then transferred him to Japan where he underwent therapy and he was able to walk again.  

3.  The applicant provides:

* DD Form 214
* Self-authored letter
* Orders awarding him the Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Vietnam assignment orders
* U.S. Army Reserve discharge orders
* Separation physical
* DA Form 20 (Enlisted Qualification Record)


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 was inducted into the Army of the United States on 27 May 1968 and he held military occupational specialty 11B (Light Weapons Infantryman).  

3.  He served in Vietnam with Company C, 1st Battalion, 12th Infantry, from on or about 20 October 1968 to on or about 15 June 1969.  His DA Form 20 shows he was in a patient status from on or about 17 April 1969 to on or about 6 July 1969. His service record also contains a hospital message authorizing his evacuation from Vietnam to the 249th General Hospital, effective 15 March 1969.

4.  He was reassigned to and served with Company C, 1st Battalion, 31st Infantry, Korea, from on or about 7 July 1969 to on or about 31 December 1969.

5.  He underwent a separation physical in Korea on or about 18 December 1969. He indicated that he hit his back on a rock in January 1969 in Vietnam.  The military doctor indicated the applicant had occasional low back pains.  Neither he nor his doctor indicated this back pain was a result of enemy action.

6.  He was honorably released from active duty on 31 December 1969.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the:

* National Defense Service Medal
* Expert Marksmanship Qualification Badge with Rifle Bar (M-14)
* Sharpshooter Marksmanship Qualification Badge with Rifle bar (M-16)
* Vietnam Service Medal
* Vietnam Campaign Medal
* Combat Infantryman Badge
* One overseas service bar
* Armed Forces Expeditionary Medal (Korea)

7.  Nothing in five typical documents show he was injured or wounded as a result of hostile action or that he was awarded the Purple Heart:

* Item 40 (Wounds) of his DA Form 20 does not show a combat wound or injury
* His records do not contain general orders authorizing him award of the Purple Heart
* His name is not shown on the Vietnam casualty roster
* A review of the Awards and Decorations Computer Assisted Retrieval System 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 him
* His service medical records are not available for review with this case

8.  He submitted a self-authored statement detailing his enlistment, training, details about his assignment to and experience in Vietnam, and subsequent assignment to Korea.  Specifically, in January 1969, his bunker came under attack by mortar rounds when he was knocked unconscious by an explosion of one of the rounds.  He was taken by chopper to a hospital where he found out he could not walk.  They treated him for about 2 weeks and then transferred him to Japan.  With therapy, and within 4 to 6 weeks, he was able to walk again.  He thought he would return to Vietnam but he was diverted to Korea instead.  

9.  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 applicant contends he should be awarded the Purple Heart and his DD Form 214 should be corrected to show it.

2.  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.

3.  The applicant's service record is void of any orders that show he was awarded the Purple Heart or that he was wounded or injured as a result of combat.  His name is not listed on the Vietnam casualty roster.  The medical documents he submitted show he had back problems but do not show these problems were caused by enemy fire or as a result of hostile action. 

4.  Notwithstanding the applicant's contention and sincerity, in the absence of documentation that shows he was wounded or injured as a result of enemy action and treated for those wounds, 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)                                         AR20110023324





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ABCMR Record of Proceedings (cont)                                         AR20110023324



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