BOARD DATE: 3 January 2013
DOCKET NUMBER: AR20120011071
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) to show this award.
2. He states he was assaulted in South Vietnam in June 1969 by a Vietnamese civilian. He adds that he suffered a traumatic brain injury from the assault and it required immediate surgery. He explains that after the surgery, he was medically evacuated from Vietnam to Japan and then to Fitzsimons General Hospital in Denver, Colorado.
3. He provides:
* DD Form 214
* Department of Veterans Affairs (VA) letter
* Exhibit F of an investigation report
* supporting statement, dated 31 October 2004
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 27 July 1967. He served in Vietnam from 20 January to 21 June 1969. He was honorably released from active duty on 17 July 1970.
3. His DD Form 214 does not show award of the Purple Heart. His name is not listed on the Vietnam casualty listing.
4. Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) is blank. There is no documentation in the available record that shows he sustained wounds or was treated for wounds incurred as a result of hostile action.
5. 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.
6. The applicant's records contain a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 16 June 1969, and a DD Form 261 (Report of Investigation Line of Duty and Misconduct Status), dated 15 September 1969. These forms show the applicant was on authorized in-country rest and recuperation leave when a Vietnamese civilian hit him with a glass or a rock and fractured his right temporal bone. The form also indicated the applicant was under the influence of alcohol. However, the injury was determined to be in the line of duty. His record further shows he was medically evacuated from Vietnam on 21 June 1969.
7. The applicant provided Exhibit F and a statement from a Criminal Investigation Division special agent that confirm his wounding. Exhibit F stated the witness told the investigating officer the Vietnamese civilian who wounded the applicant was a cowboy or local roughneck and was noted for performing such violent acts in the area. Additionally, this form indicated that the Vietnamese civilian initiated the incident and the applicant's intoxication had no bearing on the incident.
8. A letter from VA shows the applicant was awarded a 30-percent disability rating for post-traumatic stress disorder effective 25 November 2003.
9. Army Regulation 672-5-1 (Decorations and Awards), in effect at the time, provided that the Purple Heart was awarded to any member of the Armed Forces of the United States who was wounded in action against an armed enemy of the United States or as a direct result of an act of such enemy provided the wound necessitated treatment by a medical officer. For the purpose of considering an award of this decoration, a "wound" is defined as an injury to any part of the body from an outside force or agent sustained in action in the face of the armed enemy or as a result of a hostile act of such enemy.
DISCUSSION AND CONCLUSIONS:
1. Although the evidence substantiates his wounding and his subsequent medical evacuation, there is no document available which shows he was wounded "in action in the face of the armed enemy." In the absence of such evidence, there is an insufficient basis for award of the Purple Heart or correction of his DD Form 214 to show this award.
2. In view of the foregoing, the applicant's request should be denied.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___x__ ___x_____ ___x_____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others to know the sacrifices he made in service to the United States during the Vietnam War are deeply appreciated. The applicant and all Americans should be justifiably proud of his service in arms.
__________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) AR20120011071
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ABCMR Record of Proceedings (cont) AR20120011071
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