IN THE CASE OF:	  

		BOARD DATE:	  10 July 2012

		DOCKET NUMBER:  AR20110025122 


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, the brother of a former service member (FSM), requests his late brother be awarded the Purple Heart (PH) and its addition to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
 
2.  The applicant states his brother should be awarded the PH and it should be annotated on his DD Form 214.  His brother duly served his country during the Vietnam War and was wounded in combat as all military hospital records indicate.  His brother unexpectedly died of an abdominal aneurism; hence, they wish to have his PH engraved on his tombstone.  In order to do this, the cemetery requires a correction to his file be made in order to engrave the PH on his tombstone that he honorably earned in his years of service.  

3.  The applicant provides:

* his birth certificate
* FSM's

* birth certificate
* overseas orders
* DA Form 8-119 (Hospital Arrival Notice)
* Medical Board Report Cover Sheet
* Medical Board Summary
* discharge election

* DA Form 1361 (Recommended Findings of Physical Evaluation Board (PEB) (Informal Hearing)
* DD Form 214
* death certificate

* letter from Army Review Boards Agency

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 FSM's military records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed his records were destroyed in that fire.  However, there were sufficient documents submitted by the applicant for the Board to conduct a fair and impartial review of this case.

3.  The FSM's available military record shows he was inducted into the Army of the United States on 3 August 1966.  He completed training and was awarded military occupational specialty 52B, Power Plant Operator.  

4.  The FSM's dates of service in Vietnam are unknown; however, his DD Form 214 shows he was assigned to the 595th Signal Company, U.S. Army Pacific (Vietnam) and credited him with completing 11 months and 9 days of foreign service.

5.  A Medical Board Cover Sheet, dated 12 July 1968, shows he was admitted to the U.S. Naval Hospital, St. Albans, NY, on 26 May 1968, for a fracture transverse process.

6.  A Medical Board Summary, dated 12 July 1968, stated:

	a.  The FSM who was a 21 year old left-handed Army member who on 26 May 1968, while on duty in Vietnam, suffered transverse processes fractures of the L1, L2, and L3 vertebra on the left side, caused by a cave-in falling on top of him in the area he was working in.

   b.  He also suffered a crushing injury to the left hand with lacerations to the left hand necessitating partial amputation.  He also suffered lacerations to the left thumb.  He was treated initially in Vietnam where the wounds were cleaned.  He was transferred to the Continental United States (CONUS) arriving on 8 June 1968.  It was subsequently recommended he appear before a PEB.

7.  On 1 August 1968, he elected not to be retained on active duty beyond his expiration of term of service.

8.  On 29 August 1968, an informal PEB found him physically unfit for military service.  The PEB found his injury was not a direct cause of armed conflict and was caused by an instrumentality of war.  The PEB recommended placement on the TDRL with a combined rating of 60 percent.  

9.  On 25 September 1968, he non-concurred with the findings and recommendations of the PEB and elected a formal hearing with personal appearance.  There is no evidence he appeared before a formal PEB.

10.  He was honorably retired on 13 November 1968 in the rank of specialist four, E-4, for temporary disability and placed on the TDRL.  

11.  His DD Form 214 lists the following awards: 

* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* one overseas service bar
* Army Good Conduct Medal

12.  There are no available orders authorizing the FSM award of the PH.

13.  On 3 October 1972, he was removed from the TDRL for permanent retirement.

14.  The FSM's name is not listed on the Vietnam casualty roster.

15.  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 were published authorizing award of the PH to the FSM.

16.  Army Regulation 600-8-22 (Military Awards) states the PH 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.

17.  Army Regulation 600-8-22 also states that when contemplating an award of the PH the key issue commanders must take into consideration is the degree to which the enemy caused the injury.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant is basing his request for award of the PH to his later brother, the FSM, on the Medical Board Summary and informal PEB, dated 12 July and 29 August 1968, which clearly show the FSM suffered a crushing injury to the left hand with lacerations to the left hand necessitating partial amputation and lacerations to the left thumb on 26 May 1968 in Vietnam.  His injuries were caused by a cave-in falling on top of him in the area he was working in.  

2.  He was honorably retired on 13 November 1968 for temporary disability and placed on the TDRL.  

3.  It is understandable that such documents would cause one to believe that the injuries incurred by the FSM were combat-related since they occurred during his period of service in Vietnam.  The PEB noted that while his injuries were caused by an instrumentality of war, they were not a direct result of armed conflict and there is no evidence the incident was caused by enemy action.  The fact the FSM's injuries incurred during an actual period of war is not a basis to support his eligibility for award of the PH.

4.  There is no evidence available and the applicant has not provided sufficient evidence which confirms the FSM was wounded or treated for wounds as a result of hostile action during his period in Vietnam.  Therefore, the FSM does not meet the regulatory requirements for award of the PH for this incident and regrettably he is not entitled to award of the PH and to have this award added to his DD Form 214.


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)                                         AR20110025122





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ABCMR Record of Proceedings (cont)                                         AR20110025122



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