BOARD DATE:  13 August 2013

		DOCKET NUMBER:  AR20130000485
 

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:

	a.  He received shrapnel wounds during a fire mission in Vietnam.

	b.  At the time the battalion intelligence officer (S-2) refused to come to the site to investigate the incident because the unit was under fire.

	c.  The commander tried to recommend the three injured Soldiers for the Purple Heart but he was told his bars would be taken away if he did not withdraw the request.  A sergeant was also told his stripes would be taken away if he pursued the matter.

3.  The applicant provides nine supporting letters, his personal statement, a diagram and a photograph, and an audio compact disk (CD) 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 2 December 1965.  He completed training and he was awarded military occupational specialty (MOS) 13B (Field Artillery Crewman).

3.  His record contains a DA Form 20 (Enlisted Qualification Record) that shows in:

	a.  item 38 (Record of Assignments) he was assigned to B Battery,
1st Howitzer Battalion, 40th Artillery in Vietnam from 15 October 1966 to
3 September 1967.

	b.  item 40 (Wounds) no entry (blank).

	b.  item 41 (Awards and Decorations) no entry for the Purple Heart.

4.  On 7 September 1967, the applicant was honorably released from active duty as an overseas returnee in the rank/grade of sergeant (SGT)/E-5.  He completed 1 year, 9 months, and 6 days of total active service.  The DD Form 214 he was issued at the time does not show award of the Purple Heart.

5.  There is no available evidence showing he was recommended for or awarded the Purple Heart.

6.  His service medical records are not available for review.

7.  The applicant provides a:

	a.  Letter wherein a Member of Congress states that:

		(1)  the applicant is requesting a Purple Heart based upon injuries he received in February 1967 while serving in Vietnam.  The applicant was one of three Soldiers injured when a 105mm howitzer round exploded.  The applicant 


suffered burns and shrapnel wounds to his upper back; another Soldier was bleeding from his nose and ears in addition to spitting up blood and suffering shrapnel wounds; and the third Soldier was on the ground on his back with his eye hanging loose from its socket, a large gash on one of his upper legs, and a severely wounded hand.

		(2)  At the time of the incident the Soldiers were in the process of unloading ammunition to place in a bunker.  The battery commander reported the incident to the S-2 at 1st Battalion Headquarters and requested the three Soldiers be awarded the Purple Heart.  That request was denied.  The S-2 never travelled to investigate the incident and never interviewed either the wounded Soldiers or witnesses to the explosion.  The S-2 informed the battery commander that there was no enemy action and the ammunitions just went off.

		(3)  The applicant provides statements from witnesses to the incident and from ammunitions experts who concluded the unit had previously experienced cases of enemy sabotage, the ammunition as packaged could not have detonated without tampering, and the explosion and resulting injuries were a direct result of enemy sabotage.

	b.  Letter from Mr. Jon K____, who indicates he was one of the first on the scene after the explosion and describes the wounds to the three Soldiers.

	c.  Letter from Ms Rosemary A. D____, a retired Federal Administrative Law Judge, who indicates she reviewed all the documents and spoke with both the applicant and interviewed William J. M____, the applicant's battery commander at the time of the incident.  He indicated that after he heard the explosion he ran to the scene and found the three wounded Soldiers.  The applicant had burns and shrapnel wounds to his upper back.  His concluded the "jungle pack" had been booby trapped prior to being supplied to his battery.  She recommended the applicant and the other two Soldiers wounded in the explosion be awarded the Purple Heart.

	d.  CD containing audio of a 24 September 2007 telephone interview by Rosemary D____ with William J. M____,  who states he was the battery commander in February 1967 when the explosion occurred resulting in injuries to the applicant and two other Soldiers.  An artillery round jungle pack exploded.  He investigated the incident and reported to the Battalion S-2 that the three Soldiers should receive the Purple Heart.  He felt the jungle pack had been tampered with and the explosion caused by a hidden hand grenade.  This was the result of an enemy action, but the S-2 responded that it was an accident and not the result of enemy action.


	e.  Letter from Mr. Robert A. C____, who states he was the firing battery medic at the time of the incident and describes the injuries sustained by the three Soldiers involved.  He states the applicant was thrown a distance consistent with the force of the blast, and sustained lacerations and contusions to the left arm and chest as well as possible contusions to the head and chest.  He was treated at the scene, evacuated to the rear for further evaluation, retained at the Battalion Aid Station, placed on a regimen of sedatives and medication for the reduction of localized pain, and eventually returned to duty with instructions for observation.

	f.  The applicant's statement wherein he states on 7 February 1967 he and two other Soldiers were unpacking recently delivered 105mm rounds that were in jungle pack containers.  One of the other Soldiers was having trouble getting the twist lock end cap off of a jungle pack.  Another Soldier went over to help.  The applicant was standing a few yards away with his back to them when the canister they were working on exploded.  The other Soldiers were injured and the applicant was hit in the back with shrapnel.  He was very fortunate physically, but he has never been able to erase the horrible scene from his mind.  He is requesting he and the other two Soldiers receive the Purple Heart.

	g.  Letter from Mr. Richard G. H____, a retired Navy Master Explosive Ordnance Disposal Technician, who states he became very familiar with the ordnance in question during his tenure as a demolition instructor.  He further relates the ordnance was a 105mm howitzer round stored in the M152 jungle pack configuration and he provides a description of how the container was packed.  He states, as it was explained to him, when one of the Soldiers removed the metal cap from the M152 container there was a 3-5 second delay before detonation.  If either the projectile or the propellant had detonated by itself it would have been instantaneous.  There was something terribly wrong with the M152 jungle pack.  The applicant has told him the unit was very experienced and although they may never know for sure what caused the detonation the applicant's battery felt it was booby trapped.

	h.  Letter from James A. S____ who was the battalion ammunition noncommissioned officer at the time to the incident.  He states B Battery was so low on ammunition that they immediately started to use the just-delivered ammunition.  It was during that time there was an explosion to the rear of one of the gun positions.  He was informed one of the rounds being prepped for firing exploded, so they suspended the use of that lot of ammunition and it was returned to the main depot.  He later found out there was no brass casing in the jungle pack and no cause for the explosion was ever noted.  He believes the 


round had been sabotaged as they had been having problems with cut communications wire as well as numerous cut tires on parked vehicles.  He states there is absolutely no possible reason for the brass casing to be missing from a jungle pack and no way to cause the powder to explode without another source of detonation.

	i.  Letter from Mr. Joseph N. B____, SFC, USA Retired, the Chief of Firing Battery for the applicant's unit at the time.  He relates there was an explosion and three Soldiers were injured.  He further states all American artillery ammunition as shipped is bore safe.  It does not malfunction on its own.  He checked with Marine explosive ordnance and they told him the round had been booby trapped.  There was no canister in the end that exploded, only powder.  Artillery powder does not explode, it burns.  He strongly disagrees that the artillery round malfunctioned.  He has over 20 years of firing artillery weapons and he has never seen a round malfunction until the round was well down range.  He compared this incident to a squad leader walking down a trail tripping a booby trap.  He concludes a booby trap is a booby trap regardless of where it occurs.

	j.  Letter from Mr. Larry E. S____, one of the other injured Soldiers, who states in February 1967, while unpacking 105 howitzer ammunition, one of the rounds exploded, wounding him and two other Soldiers.  Those rounds did not just explode.  They were packed in such a way that this was virtually impossible.  The round was placed in a waterproof fiber container with a one inch thick rubber donut-like washer on each end, and then placed in a heavy steel canister.   The canister that night was setting on end, flat on the ground when it exploded.  The canister side was ripped part way down from the cap end.  The end that would have had the bass ammo canister in it was not there, but the powder bags were.  The incident was never investigated.

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 (ADCARS), 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 any 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.  

11.  Army Regulation 672-5-1 (Military Awards), in effect at the time, states the Purple Heart is awarded to any member of an Armed Force who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, has been wounded, or killed, or who has died or may hereafter die after being wounded:

	a.  In any action against an enemy of the United States;

	b.  In any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged;

	c.  While serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party;

	d.  As a result of an act of any such enemy of opposing armed forces; or

	e.  As the result of an act of any hostile foreign force.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record and the applicant did not provide sufficient evidence that shows he was treated for this injury or that he was wounded while in action against an enemy or as a result of hostile action.

2.  The letters of support and other evidence provided by the applicant has been reviewed; however, there was no investigation conducted at the time of the incident to show the explosion was the direct result of enemy action (a booby-trapped artillery round).

3.  Although the evidence provided by the applicant is not in question, lacking the results of an investigation, there is insufficient evidence that confirms the applicant was injured as a result of hostile action.

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 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)                                         AR20100025029



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ABCMR Record of Proceedings (cont)                                         AR20130000485



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