IN THE CASE OF:	  

		BOARD DATE:	  30 August 2012

		DOCKET NUMBER:  AR20120003284 


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 correction of his records to show award of the Purple Heart.

2.  The applicant states he served in Vietnam and sustained 2nd degree burns over 40% of his body.

   a.  While working with other Soldiers making a road through a cemetery, some local nationals began throwing rocks and sticks at him.  They also surrounded the bulldozer that he was operating.
   
   b.  A hydraulic line broke loose and caught fire, spraying him with hot oil.  He ran about 25 yards and dove into a rice paddy to put out the fire.
   
   c.  He spent 3 days on a hospital ship off the coast of Vietnam.  He was then taken to the 106th Hospital in Japan where he received additional treatment for about 3 weeks.  While in the hospital he witnessed others with more severe injuries and he began to feel better about his condition.

   d.  He was transferred to a hospital at Fort Jackson, SC where he received treatment for about 3 weeks, then he returned to the 138th Military Police Company, and worked in the stockade and mess hall until he was separated from the Army.


   e.  He received a 10% disability rating for service-connected burns from the Department of Veterans Affairs (VA).  He was able to work as a functional alcoholic until 1997.  After that, his work habits declined and he did not work until 2008.

   f.  He continues to seek assistance from the VA for his medical conditions.  Correction of his records to show award of the Purple Heart will enhance his eligibility for benefits.

3.  The applicant provides no additional documentary evidence in support of his request.

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 22 May 1968.  He was awarded military occupational specialty (MOS) 62E (Crawler - Tractor Operator).

3.  His DA Form 20 (Enlisted Qualification Record) shows in:

   a.  Item 31 (Foreign Service):  Vietnam from 18 October 1968 through
8 February 1969.

	b.  Item 38 (Record of Assignments):  Company C, 14th Engineer Battalion (Combat), from 26 October 1968 through 30 January 1969.

	c.  Item 40 (Wounds):  Burn from waist up, 26 January 1969.

	d.  Item 41 (Awards and Decorations):  No listing of the Purple Heart.

4.  A U.S. Army Vietnam Casualty Report shows the applicant sustained 2nd and mostly 1st degree superficial burns over 40% of his body, face, chest, right forearm, left forearm, trunk, and left hand.  At the time, the applicant was operating a bulldozer in the construction of a road when the hydraulic line ruptured and sprayed him with hot hydraulic fluid.  

5.  A DA Form 8-275-2 (Clinical Record Cover Sheet), dated 6 February 1969, shows that at 1345 hours, on 26 January 1969, the applicant sustained 2nd degree burns over 26% of his body surface, face, anterior trunk, and both upper extremities.  He was injured when a hydraulic line on a bulldozer, which he was driving, broke spraying him and then catching on fire.

6.  On 18 April 1969, the applicant was assigned to the Replacement Detachment, 2nd Basic Combat Training Brigade, Fort Jackson, SC, and attached to the 138th Military Police Company.

7.  He was awarded primary MOS 94B (Cook) on 6 January 1970.

8.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant was honorably released from active duty on
21 May 1970 and transferred to the U.S. Army Reserve Control Group (Annual Training) to compete his Reserve obligation.  

   a.  He had completed 2 years of net active service.

	b.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) does not show the Purple Heart.

9.  A review of the applicant's military personnel records failed to reveal any evidence he was awarded the Purple Heart.

10.  The Vietnam casualty listing does not show the applicant's name.

11.  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 for the Purple Heart pertaining to the applicant.

12.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.  It shows the Purple Heart is awarded to any member who was wounded or killed in action or as a result of enemy action.
   a.  A wound is defined as an injury to any part of the body from an outside force, element, or agent sustained in action in the face of the armed enemy or as a result of a hostile act of such enemy.
   
   b.  In order to support awarding a member the Purple Heart, it is necessary to establish the wound for which the award is being made required treatment by medical personnel and the medical treatment for the wound or injury received in action must have been made a matter of official record.
   
   c.  The regulation provides examples of injuries or wounds which clearly do not justify award of the Purple Heart that, in pertinent part, shows accidents, to include explosive, aircraft, vehicular, and other accidental wounding or injury not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim to the Purple Heart was carefully considered.

2.  Records show the applicant sustained injuries on 26 January 1969 in Vietnam when he was operating a bulldozer in the construction of a road and the hydraulic line ruptured, sprayed him with hot hydraulic fluid, and then caught on fire.
   
3.  There is no evidence in the applicant's military personnel records that shows the incident occurred as a result of a hostile act of the enemy.

4.  The applicant's name is not listed on the Vietnam casualty listing.

5.  The sincerity of the applicant's claim is not in question.  However, in order to support awarding a member the Purple Heart it is necessary to establish the wound or injury for which the award is being made was sustained in action or as a result of a hostile act of the enemy.  The fact that the applicant was awarded a 10% disability rating due to a service-connected disability or disabilities does not offer evidence to show the applicant was wounded or injured in action.

6.  In view of all of the foregoing, the available evidence is insufficient to support award of the Purple Heart at this time.







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)                                         AR20120003284



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ABCMR Record of Proceedings (cont)                                         AR20120003284



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