IN THE CASE OF: 

		BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20120010650 


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 wife of a deceased former service member (FSM), requests the FSM be awarded the Purple Heart.

2.  The applicant states the FSM told her he wounded his right leg/ankle bone in combat when he jumped from a plane while serving in Vietnam.  His injury never healed.  The ankle bone became infected and gangrenous.  The infection was unable to be treated and resulted in an above-the-knee leg amputation.  In addition, he tested positive for exposure to Agent Orange.  The FSM was never awarded the Purple Heart for the injury he incurred in Vietnam.  He was a proud man who did not feel his injury warranted the award and believed other Soldiers were more deserving.  However, his family feels his actions merited award of the Purple Heart and are making the request on his behalf.

3.  The applicant provides:

* An undated handwritten account of the FSM's assignment to Vietnam
* Honorable Discharge Certificate
* Certification of Service, dated 19 October 1971
* DD Form 214 (Report of Separation from Active Duty) for the period ending on 24 September 1974
* Department of Veterans Affairs (VA) application for medical benefits, dated 30 April 1991



* Death Certificate, dated 19 December 2010
* Letter from National Personnel Records Center (NPRC), dated 26 January 2012
* Letter from the VA, dated 29 February 2012
* Letter to the NPRC, dated 4 May 2012
* Standard Form (SF) 180 (Request Pertaining to Military Records), dated 
1 June 2012 

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 enlisted in the Regular Army on 2 February 1959 and served through a series of reenlistments and assignments with one short break in service from 4 April 1962 to 16 September 1963.  He held military occupational specialty 31M (Multichannel Transmission Systems).  The highest rank/grade he attained while serving on active duty was staff sergeant/E-6.

3.  His DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from and:

* was assigned to the US Army Strategic Command Army Communications Operations Center from 29 February 1960 to 14 April 1970
* Company B, 36th Signal Battalion from 6 August 1969 to 25 November 1969
* U.S. Army Element Vietnam Army-Air Force Regional Exchange from      26 November 1969 to 5 August 1970
* Capital Military Assistance Team (CMAT), United States Military Assistance Command, Vietnam (MACV) from 6 August 1970 to 16 July 1971

4.  There is nothing in multiple typical source documents to confirm he was wounded in action and/or treated for a combat injury/wound:
* Item 38 (Record of Assignments) of his DA Form 20 does not show he was in a patient status
* Item 40 (Wounds) of his DA Form 20 does not show a combat wound/injury 
* Item 41 (Awards and Decorations) of his DA Form 20 does not show award of the Purple Heart
* His records do not contain general orders (GO) authorizing him award of the Purple Heart
* His name is not shown on the Vietnam casualty roster
* 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 and maintained by the U.S. Army Human Resources Command - failed to reveal Purple Heart orders for him
* His official records do not contain a Department of the Army telegram or a Western Union message regarding an injury or wound
* There are no medical records which note any combat injuries or wounds

5.  His record contains a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 25 June 1974, and showing:

* The incident causing the injury occurred on or around 4 June 1972 when he fell from a ladder at Fort Gordon
* He was admitted to the hospital at Fort Gordon, GA on 13 July 1973 and treated for a right foot ankle injury
* He was previously treated in July 1973 for arthritis in his right foot
* A memorandum attached to the form indicated the injury was determined to have occurred in the line of duty

6.  The DA Form 2173 had a signed statement, dated 26 June 1974, attached, wherein the FSM stated:

The accident occurred on 4 June 1972…at approximately 1300 hours at…[his]…residence…[in]… Grovetown, Georgia.  [He]…had finished pulling the motor out of…[his]…car and…was climbing a ladder to take down the chain hoist.  The ladder, braced against a tree in…[his]…back yard, slipped and…[he]…fell breaking…[his]…foot.  [His]…next door neighbor 

took…[him]…to the hospital.  [He]…was x-rayed and seen by…[a medical officer].  [He]…lived off post at the time and was on a weekend pass.

7.  His record contains an SF 502 (Narrative Summary (NARSUM)), dated 
13 July 1973.  This form shows the history of his illness began when he fell off a 
ladder in June 1972 and sustained a fracture of his right os calcis (heel bone).  It was a fracture through the posterior aspect involving the subtalar joint and a loss of Bohler's angle.  He was diagnosed with degenerative joint disease of the right mid-foot and right ankle, symptomatic, and a fracture of the os calcis on his right foot, sustained when he fell from a ladder, which has healed but is the underlying cause of the illness.  He was recommended for a Physical Evaluation Board (PEB).

8.  He was honorably retired from active duty on 24 September 1974.  

9.  The applicant provided a VA application for medical benefits, dated 30 April 1991, which shows he had been exposed to Agent Orange.

10.  On 26 January 2012, NPRC wrote to the applicant to inform her that several awards had been authorized for the FSM.  The Purple Heart was not listed among the awards authorized.  On 4 May 2012, the applicant wrote a letter of reply to NPRC to ask for reconsideration for award the FSM the Purple Heart.

11.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against and 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.  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 jump injuries not caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The criteria for award of the Purple Heart requires the submission of substantiating evidence to verify the injury/wound was the result of hostile action, the injury/wound must have required medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.  In addition, jump injuries (injuries caused by jumping from an aircraft) not caused by enemy action do not qualify for award of the Purple Heart.

2.  The FSM's service record is void of any evidence that shows he was wounded or injured as a result of hostile enemy action.  
3.  In view of the foregoing, 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)                                         AR20120010650





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ABCMR Record of Proceedings (cont)                                         AR20120010650



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