IN THE CASE OF:	  

		BOARD DATE:	  18 April 2013

		DOCKET NUMBER:  AR20120018002 


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.  He states:

	a.  He was injured during a rocket attack by the North Vietnamese Army.  He was on top of a conex container rigging it for a sling load when the first rocket hit just yards away.  In his haste to get to cover, he jumped from the top of the container twisting his knee on impact with the ground.  He also suffered other minor injuries.  The rockets continued to hit, but he made it to cover.

	b.  After receiving treatment, he was advised by a noncommissioned officer that paperwork would be submitted for him to be awarded the Purple Heart.  The unit changed locations shortly thereafter, complicating the matter.  Admittedly, after numerous attempts to correct the error he forgot about it and he did not follow-up.  He is now getting his affairs in order, so he is seeking to officially receive this recognition.

3.  He provides:

* two Standard Forms (SFs) 600 (Health Record – Chronological Record of Medical Care) for treatment on 27 March and 12 April 1969
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 June 1983

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 appointed in the Army of the United States as a warrant officer one (WO1) on 25 February 1964 and entered active duty.  He served in primary military occupational specialty 100B (Rotary Wing Pilot).

3.  He served in Vietnam from 11 July 1965 through 29 August 1966 and from 21 June 1968 through 25 May 1969.

4.  He provides copies of two SFs 600 that indicate he was treated by medical personnel on:

* 27 March 1969 – while assigned to the 11th Aviation Group, he sprained his knee and received medical treatment; he returned 3 days later with more pain and he was referred for an X-ray
* 12 April1969 – he received follow-up treatment for a sprained knee as a result of jumping off a conex container

5.  He was retired on 30 June 1983 by reason of sufficient service for retirement. The DD Form 214 he was issued at the time, as corrected by a DD Form 215 (Correction to DD Form 214) issued on 1 July 2004, does not show award of the Purple Heart.

6.  Item 9 (Awards, Decorations, and Campaigns) of his DA Form 2-1 (Personnel Qualification Record) does not list the Purple Heart.

7.  There is no evidence he was wounded as result of enemy action during his periods of service in Vietnam.  There are no orders in his record awarding him 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, 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 orders for the Purple Heart pertaining to the applicant.

10.  Army Regulation 600-8-22 (Military Awards) states 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.  When contemplating an award of the Purple Heart, the key issue commanders must take into consideration is the degree to which the enemy caused the injury.  The fact the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and the evidence submitted were carefully considered.  However, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.

2.  The regulation governing award of the Purple Heart specifically states that in order to support award of the Purple Heart, there must be evidence confirming the wound for which the award is being made was received as a direct result of, or was caused by enemy action, that the wound was treated by medical personnel, and a record of this treatment must have been made a matter of official record.

3.  The evidence of record does not show the injuries the applicant sustained in March 1967 were a direct result of or caused by enemy action.  His record contains no orders or other sufficient documents confirming the injuries he received were caused by participation in direct or indirect combat operations while serving in Vietnam.  As he describes the incident, his injury was caused by his jumping off the conex to get to cover; he does not state that he was blown off the conex by enemy fire.

4.  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)                                         AR20120018002



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ABCMR Record of Proceedings (cont)                                         AR20120018002



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