IN THE CASE OF:	  

		BOARD DATE:	  14 August 2012

		DOCKET NUMBER:  AR20120002665 


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 suffered fragment wounds to the left leg in Vietnam on 25 July 1970.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Pages 3 and  4 of his 4-page DA Form 20 (Enlisted Qualification Record)
* Two Standard Forms (SF) 600 (Chronological Record of Medical Care)

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 14 May 1969 and held military occupational specialty 11B (Light Weapons Infantryman).  He served in Vietnam with Troop B, 2nd Squadron, 17th Cavalry Regiment, from 17 April 1970 to 24 March 1971.

3.  Item 40 (Wounds) of his DA Form 20 shows the entry "Multiple fragment wounds to left leg, 25 July 1970."

4.  His record contains a document titled "Log Number 3491" that shows the applicant suffered multiple fragment wounds to his left leg on 25 July 1970 and the entry:

Cleaning up detail in front of bunker burning grass when some type of explosive was set off (possibly a cook off) - investigation

5.  Subsequent to completing his Vietnam tour, he was reassigned to Fort Campbell, KY.  His record also contains the following medical documents:

	a.  SF 600, dated 12 February 1971, that shows the entry "foreign body left in groin."

	b.  SF 600, dated 12 February 1971, that shows the entry "foreign body left anterior thigh - would appreciate your evaluation."  He was evaluated on
13 February 1971 and the evaluating official stated "foreign body removed, wound cleaned, light duty."

	c.  SF 88 (Report of Medical Examination), dated 23 March 1971, that did not note any injuries or wounds.

6.  On 25 March 1971, he was honorably released from active duty as an overseas returnee and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining service obligation.  His DD Form 214 does not show award of the Purple Heart.

7.  His records do not contain general orders that authorized him award of the Purple Heart.

8.  Review of The Adjutant General's Office, Casualty Division's Vietnam casualty listing does not show the applicant's name as a casualty.

9.  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.

10.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart 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:

	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.

11.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9 of the version in effect at the time, states that a brief description of wounds or injuries (including injury from gas) requiring medical treatment that were received through hostile or enemy action, including those requiring hospitalization would be entered in item 40 of the DA Form 20.

12.  This regulation further stated that the date the wound or injury occurred would also be placed in item 40.

DISCUSSION AND CONCLUSIONS:

1.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria.  When contemplating an award of this decoration, the key issue 

that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not the sole justification for the award.

2.  The criteria for an award of 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 treatment by medical personnel, and the medical treatment must have been made a matter of official record.

3.  In this case, the evidence of record shows a cleaning up detail was working in front of a bunker burning grass when some type of explosive was set off (possibly a cook off).  It appears an investigation was conducted but the results of this investigation are not available for review with this case.

4.  His DA Form 20 shows he received fragment wounds to his left leg on that date.  The DA Form 20 is a record of the applicant's history in the Army and an entry for wounds received would not normally be made on this document without orders or a casualty report.  The DA Form 20 is a source document for completion of the DD Form 214.

5.  Nevertheless, there is insufficient evidence to determine if this entry was made prior or subsequent to an investigation.  Additionally, there is no evidence of record to support a combat wound:  his name is not shown on the Vietnam casualty listing and his available medical records do not reflect a combat wound.

6.  Notwithstanding his sincerity, in the absence of additional official documentary evidence to corroborate the events that led to his alleged injury, or additional documentation that conclusively shows he was wounded or injured as a result of hostile action and treated for those wounds, 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)                                         AR20120002665



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ABCMR Record of Proceedings (cont)                                         AR20120002665



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