IN THE CASE OF:	  

		BOARD DATE:	  27 September 2012

		DOCKET NUMBER:  AR20120005499 


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 was assigned to Troop B, 1st Squadron, 11th Armored Cavalry Regiment.  He believes his wounds were a result of combat and he has always believed he should have been awarded the Purple Heart as a result of the actions he took for which he was awarded the Soldier's Medal for heroism on 28 July 1970.

3.  The applicant provides copies of his Soldier's Medal award orders and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 6 March 1969.  He was awarded military occupational specialty 11D (Armor Reconnaissance Specialist).

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

   a.  item 31 (Foreign Service), Vietnam service from 27 August 1969 through 25 August 1970;

	b.  item 38 (Record of Assignments), assignment to Troop B, 1st Squadron, 11th Armored Cavalry Regiment, from 4 September 1969 through 23 August 1970;

	c.  item 40 (Wounds), no entry; and

	d.  item 41 (Awards and Decorations), no listing for the Purple Heart.

4.  Headquarters, II Field Force Vietnam, General Orders Number 3973, dated 4 October 1970, awarded the applicant the Soldier's Medal for heroism in the Republic of Vietnam (RVN) on 28 July 1970.

	a.  The citation states the applicant "distinguished himself by heroism not involving conflict with an armed enemy while serving as a vehicle commander."

	b.  The citation also states, "as the troop was preparing for a reconnaissance mission, ammunition on one of the armored vehicles suddenly began exploding….[Applicant], disregarding his own safety, began throwing the grenades off the vehicle and, in the process, received serious burns."

5.  The applicant's DD Form 214 shows he was honorably released from active duty on 5 March 1971 and transferred to the U.S. Army Reserve Control Group (Annual Training) to compete his Reserve obligation.  He completed 2 years of net active service.  His DD Form 214, as corrected by a DD Form 215 (Correction to DD Form 214), does not show award of the Purple Heart.

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

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

8.  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 U.S. Army Human Resources Command Military Awards Branch, failed to reveal any orders for the Purple Heart pertaining to the applicant.

9.  In a letter to The Adjutant General of the Army, dated 1 April 1985, the applicant inquired into his entitlement to award of the Purple Heart based on his actions in the RVN on 28 July 1970.  On 5 July 1985, he was advised that "accidental injuries received in a combat zone are not considered as wounds 'received in action.'  Therefore, there is no authority whereby [the applicant] may be awarded the Purple Heart."

10.  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.

	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.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart, in part, are 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 in the RVN on 28 July 1970 when ammunition on an armored vehicle preparing for a reconnaissance mission suddenly began exploding.  The applicant began throwing grenades off the vehicle and, in the process, received serious burns.  The general orders recognizing the applicant's actions on that date specifically state the applicant distinguished himself by heroism not involving conflict with an armed enemy.

3.  There is no evidence in the applicant's military personnel records that shows the incident occurred as a result of a hostile act by the enemy.

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

5.  The sincerity of the applicant's claim is understandable.  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 as a result of a hostile act by the enemy.

6.  In view of all of the foregoing, there is no basis to support the applicant's claim to award of the Purple Heart.

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 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)                                         AR20120005499



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ABCMR Record of Proceedings (cont)                                         AR20120005499



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