IN THE CASE OF:	  

		BOARD DATE:  24 July 2012

		DOCKET NUMBER:  AR20120001835 


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) for the period ending 4 February 1972 to show this award.

2.  The applicant states he is requesting award of the Purple Heart for injuries he received resulting from an engagement by hostile forces on 10 April 1971 at the enlisted men's club, Vietnam, during a grenade attack.

3.  The applicant provides:

* His DD Form 214
* DD Form 214 (Report of Separation from Active Duty)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Twenty-seven pages of medical records, dated from 10 April to 11 June 1971

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 12 June 1970 for a period of
3 years.  He held military occupational specialty 12B (Combat Engineer).  He served in Vietnam from 22 November 1970 to 1 May 1971 while assigned to the 299th Engineer Battalion.

3.  On 10 April 1971, he was admitted to the U.S. Air Force (USAF) Hospital, Vietnam, for treatment of white phosphorus burns of the face, upper extremity, and left knee comprising less than 2 percent (%) of the total body surface.

4.  An AF (Air Force) Form 565-4 (Clinical Record Cover Sheet), dated 13 April 1971, shows in item 38 (Cause of Injury) that the injury was intentionally inflicted on 10 April 1971 at the enlisted men's club when an unknown individual threw two white phosphorus hand grenades into the club.  This occurred on base when the applicant was off-duty.

5.  On 1 May 1971, he was medically evacuated from Vietnam and assigned as a patient at Walter Reed General Hospital, Washington, DC.

6.  On 11 June 1971, he was released from Walter Reed General Hospital and he returned to duty.  He was subsequently assigned to the 613th Engineer Battalion, Fort Ord, CA.

7.  He was honorably released from active duty on 4 February 1972 and he was transferred to the Ohio Army National Guard.  He completed 1 year, 7 months, and 24 days of total active service this period.

8.  The DD Form 214 he was issued at the time does not show the Purple Heart.

9.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) is blank and item 41 (Awards and Decorations) does not show the Purple Heart.

10.  There is no evidence of record and the applicant did not provide any evidence that shows he was awarded the Purple Heart.


11.  Review of The Adjutant General's Casualty Division's Vietnam casualty listing failed to show his name as a casualty.

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

13.  The applicant provides numerous medical documents that show he was treated for phosphorous burns to his body from 10 April to 11 June 1971 at both the USAF Hospital in Vietnam and Walter Reed General Hospital when a white phosphorus grenade exploded in the enlisted club, Vietnam.  However, none of these documents indicated his injury was incurred as the result of hostile action.

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

	a.  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.

	b.  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.

15.  The WP M34 White Phosphorus Hand Grenade was a weapon used by American and allied forces during the Vietnam War.

DISCUSSION AND CONCLUSIONS:

1.  The criteria for the Purple Heart requires the submission of substantiating evidence to verify that a Soldier received a wound/injury as the result of hostile action, the wound/injury required medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.  It is also 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.

2.  While the available medical records show the applicant received burns to his body while in Vietnam, these records also show the burns were caused when an unknown individual threw two white phosphorus hand grenades into the enlisted club and that the applicant was off-duty at the time.  His record does not contain any evidence and he has not provided any evidence that shows this injury was the result of hostile action or caused by friendly fire in the heat of battle.

3.  His record is void of evidence that shows he was wounded or injured as a result of combat.  His name is not listed on the Vietnam casualty listing.  His DA Form 20 also does not indicate he received a combat-related wound.

4.  Notwithstanding the applicant's sincerity, in the absence of documentation that conclusively shows he was wounded or injured as a result of enemy action or by friendly fire in the heat of battle, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20120001835



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ABCMR Record of Proceedings (cont)                                         AR20120001835



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