IN THE CASE OF:	  

		BOARD DATE:	  5 June 2012

		DOCKET NUMBER:  AR20110024388 


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 it was considered an accident at the time but was actually the result of enemy action.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Statement from a fellow Soldier at the time in question
* Service medical records 

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 7 March 1968.  He served as a light weapons infantryman in Vietnam from 4 March 1969 to 4 February 1970 and retired by reason of permanent disability on 25 June 1970.

3.  His DD Form 214 does not show the Purple Heart as an authorized award.

4.  There are no orders for the Purple Heart in the available records.

5.  Item 20 (Wounds) of his DA Form 20 (Enlisted Qualification Record) shows he sustained fragment wounds to his right arm, hip, and thigh and his right arm was amputated on 15 January 1970.

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

7.  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 United States Army 
Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant.

8.  A Western Union telegram, dated 16 January 1970, states the applicant was injured in Vietnam on 15 January 1970 by fragments while at an artillery firing position when a trip flare he was holding in one hand ignited causing blasting caps he was holding in the other hand to detonate.  He received traumatic amputation of the right hand at the wrist and wounds to the right leg.     

9.  Item 30 (Details of Accident - Remarks) of a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 23 January 1970, states the applicant was holding blasting caps in his hand when another Soldier walked up with a trip flare that he thought was a dud and the trip flare went off and ignited the blasting caps in the applicant's hand.  Other details indicate the applicant was setting up an ambush in Vietnam.      

10.  He provided clinical records, dated 19 January 1970 and 2 February 1970, which show the entry "AI" (accidental injury). 

11.  He provided a clinical record, dated 25 June 1970, which shows the entry "IRHA" (incurred as a result of hostile action).

12.  He provided Medical Evaluation Board (MEB) proceedings, dated 30 April 1970, which state:

* he was injured when blasting caps he was carrying in his right hand were detonated by sparks from an exploding trip flare while he was setting up for a night ambush
* he suffered a traumatic amputation of his right forearm, below elbow
* the entry "AI"    

13.  He provides an undated statement from a fellow Soldier at the time in question.  He attests:

* The applicant was his squad leader
* He was with the applicant when he was wounded
* Their squad was directed to set up an unmanned ambush on an access to their fire support base
* As he was setting up a string of claymore mines that would be triggered by a trip flare, the applicant was watching his back and carrying explosives for him
* He heard a shot and he dropped to the ground
* Immediately an explosion went off behind him and somehow the explosive device in the applicant's hand was set off in the sniper attack
* The applicant's hand was blown off by the explosion 

14.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was injured as a result of enemy action in Vietnam.

2.  The statement from a fellow Soldier at the time in question who attests the applicant was injured by a sniper attack was noted.  However, contemporaneous medical documentation (DA Form 2173) states a Soldier with a trip flare walked up to the applicant and the trip flare went off and ignited the blasting caps in the applicant's hand.  

3.  There are discrepancies in his records regarding whether his injuries were the result of hostile or non-hostile action.  Annotations in his medical record indicate that his injury was the result of hostile action.  However, his MEB proceedings show he was accidentally injured on 15 January 1970 in Vietnam when blasting caps he was carrying in his right hand were detonated by sparks from an exploding trip flare while he was setting up for a night ambush, not as a result of hostile action.  This contemporaneous information is accepted as more credible in determining the events on that day.  Therefore, there is insufficient evidence on 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)                                         AR20110024388





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ABCMR Record of Proceedings (cont)                                         AR20110024388



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