IN THE CASE OF:	  

		BOARD DATE:	  8 August 2013

		DOCKET NUMBER:  AR20120023034 


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:

* the Purple Heart was never awarded to him for his 1970 Vietnam combat injury
* he was assigned to Company C, 2nd Battalion, 506th Infantry Regiment, 101st Airborne Division, in Vietnam
* he witnessed another Soldier's death
* his unit moved to "hot locations" in Vietnam where he performed casualty duties; caught fire from the enemy; and experienced fear, fatigue, stress, and tension
* he was relieved from his shift on 13 May 1970 and fell asleep quickly due to fatigue
* he woke up 3 days later on a hospital ship
* the official report read, "This 20 year old male was struck in the head with a tree branch while sleeping in the Republic of Vietnam"
* he does not know where this information came from – he has no memory of the event other than being told to get some rest the last night he was in Vietnam
* he had surgery in which bone fragments were removed from his skull and an acrylic plate measuring 1 inch by 5 inches was used to replace his broken skull
* he was told he received a compound fracture to his skull, his brain was bruised, he would probably have trouble with his vision, and there was no way to know if his epileptic seizures were permanent or temporary
* he experienced seizures during his hospitalization and for several years thereafter
* historical records show Company C was involved in heavy combat at Firebase Ripcord during the time of his injury
* he was given a form to complete while in a hospital in Japan and told the form might get him the Purple Heart
* he threw the form in the trash and commented that he thought your superiors were supposed to make the recommendation for award of the Purple Heart
* it did not seem like a big deal at the time, but as the years have passed he realizes this award recognition would express appreciation for his service

3.  The applicant provides:

* self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 9 March 1982
* DA Form 8-275-2 (Clinical Record Cover Sheet), dated 14 August 1970
* medical record extracts
* DA Form 3349 (Medical Condition – Physical Profile Record), dated 29 May 1974
* Department of Veterans Affairs (VA) Rating Decision, dated 4 January 2010
* compensation decision letter from the VA, dated 12 January 2010
* 2nd Battalion, 506th Infantry Regiment, 101st Airborne Division, Unit History 1970

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 29 August 1969.  He held the military occupational specialties 35B (Electronic Instrument Repairman) and 76Y (Unit Supply Specialist).

3.  His DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam during the period 17 February through 18 August 1970.

4.  He was honorably discharged on 12 March 1972 and immediately reenlisted.  His DD Form 214 for the period ending 12 March 1972 shows:

* he completed 3 months and 2 days of foreign service in the U.S. Army Pacific
* he served in Vietnam during the period 17 February through 18 May 1970

5.  Nothing in typical sources indicates he was wounded in action and/or treated for a combat injury/wound.

* item 41 (Awards and Decorations) of his DA Form 20 does not show award of the Purple Heart
* item 9 (Awards, Decorations, and Campaigns) of his DA Form 2-1 (Personnel Qualification Record – Part II) does not show award of the Purple Heart
* his name is not shown on the Vietnam casualty roster
* his available medical records do not show any treatment for a combat injury/wound
* his records do not contain general orders awarding him the Purple Heart
* 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 – failed to reveal orders awarding him the Purple Heart

6.  The applicant provides a self-authored statement; his VA Rating Decision; and a unit history of the 2nd Battalion, 506th Infantry Regiment, 101st Airborne Division, in support of his request.  He also provides medical records extracts which show he was struck by a tree branch on 13 May 1970 while he was sleeping.  His medical records extracts also show his subsequent treatment, but do not show his injury was caused by enemy action.

7.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for award of the Purple Heart was carefully considered.

2.  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 required treatment by medical personnel, and the medical treatment was made a matter of official record.

3.  Notwithstanding the applicant's contention and his sincerity, there is insufficient evidence upon which to base award of the Purple Heart in the absence of additional documentation that conclusively shows he was wounded or injured as a result of enemy action.

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)                                         AR20120023034



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120023034



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1