IN THE CASE OF:	  

		BOARD DATE:	  24 September 2013

		DOCKET NUMBER:  AR20130002937 


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 a second award of the Purple Heart.

2.  The applicant states:

   a.  He was never awarded the Purple Heart for injuries received from hostile action on 27 April 1969 in Vietnam.  He just recently recovered documents to support his claim. 

	b.  A review of the enclosed Explosive Ordnance Disposal (EOD) Activity Reports for the periods 1 January through 30 June 1968 and 1 July through 31 December 1968 and the After Action Report on the EOD Cleanup Operations of the Qui Nhon Ammunition Base Depot, Vietnam, demonstrate that he was injured on 31 March 1969 and again on 27 April 1969 as a result of hostile action. The injuries are documented and he has highlighted them on the reports.

	c.  The EOD Activity Report for the period 1 January through 30 June 1968 "documents award of the Purple Heart to most of the personnel listed as injured during this reporting period."  He and two other service members did not receive the Purple Heart for injuries received as a result of hostile action.

	d.  He is enclosing a copy of his general orders (GO), dated 22 September 1969, awarding him the Purple Heart for an injury received on 31 March 1969 at Qui Nhon.  He was treated and returned to duty after both injuries as were all personnel injured in the Qui Nhon cleanup.  It is his belief that paperwork was not submitted for his second award of the Purple Heart due to his rank at the time.
3.  The applicant provides:

* An After Action Report for the 184th Ordnance Battalion on the EOD Cleanup Operations
* two EOD Activities Reports
* GO for the Purple Heart and resulting certificate

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 (RA) on 29 June 1967.  He completed training and he was awarded military occupational specialty 76Y (Supply Specialist).  He served in Vietnam from 17 October 1968 through 29 April 1970, during five campaigns.  He was assigned to Headquarters and Headquarters Company, 3rd Ordnance Battalion.  

3.  He provides copies of the following:

   a.  An After Action Report on the EOD Cleanup Operations, dated 25 May 1969, for the period 23 February 1969 through 25 May 1969, which shows they came under enemy attack on 23 February, 10 March, and 23 March 1969.  The report also shows the applicant, as a member of the 184th Ordnance Battalion, received lacerations to his arms and chest as a result of the function of a broken fuze M716.  His name is not listed under personnel presented with or pending any awards, to include the Purple Heart, for this period.

   b.  An EOD Activities Report, dated 27 July 1969, for the period 1 January through 30 June 1969, which lists the applicant as having received lacerations while recovering a damaged 2.75" rocket on 28 April 1969.  He was returned to duty after treatment.  The report also shows he received lacerations when an M716 point detonating "fuze functioned."  He was treated by medics and returned to duty.  His name is not listed among personnel receiving any awards to include the Purple Heart.  

   c.  GO Number 1227, issued by Headquarters, U.S. Army Support Command, Saigon, on 22 September 1969, awarding him the Purple Heart for wounds received in action in Vietnam on 31 March 1969.  He also provides a copy of the resulting certificate.

   d.  An EOD Activities Report, dated 27 January 1970, for the period 1 July through 31 December 1969.  The report does not list the applicant as being injured during this period.  The report shows the applicant was awarded the Bronze Star Medal and Purple Heart.

4.  He was honorably discharged from active duty in pay grade E-6 on 27 July 1975.  His DD Form 214 (Report of Separation from Active Duty) lists the:

* National Defense Service Medal
* Republic of Vietnam Campaign Medal
* Vietnam Service Medal
* Army Commendation Medal
* Purple Heart
* Army Good Conduct Medal (2nd Award)
* Bronze Star Medal
* three overseas service bars

5.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in:

* Item 4 (Assignment Considerations) – Superficial wounds on upper body and left arm, mortar 31 March 1969
* Item 9 (Awards and Decorations) – the same awards as listed on his 1981 DD Form 214 with the addition of the Army Good Conduct Medal (4th Award)

6.  There are no orders in his records awarding him a second award of the Purple Heart.

7.  His medical records are not available for review with this case.  His name is not shown on the Vietnam Casualty Roster.  

8.  He reenlisted in the RA on 28 July 1975 and he was honorably discharged on 27 July 1981.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) lists the:

* National Defense Service Medal
* Republic of Vietnam Campaign Medal
* Vietnam Service Medal with four bronze service stars
* Army Commendation Medal
* Purple Heart
* Army Good Conduct Medal (4th Award)
* Bronze Star Medal

9.  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 Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any orders for a second award of the Purple Heart to the applicant.

10.  Army Regulation 600-8-22 (Military Awards) specifies the Purple Heart is awarded for a wound sustained 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.  A Purple Heart is authorized for the first wound suffered under the above conditions, but for each subsequent award an Oak Leaf Cluster will be awarded.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of entitlement to a second award of the Purple Heart was carefully considered.  However, by regulation, in order to support award of a second Purple Heart there must be evidence confirming the wound/injury for which the award is being made was received as a direct result of or was caused by enemy action, the wound/injury was treated by medical personnel, and a record of this treatment must have been made a matter of official record.

2.  The After Action and EOD Activities Reports do not confirm he was wounded or injured as a result of hostile action a second time during his period of service in Vietnam.  They show he received some injuries from what appear to be ordnance malfunctions.  The evidence of record contains no orders or other documents confirming he was wounded or injured a second time as a result of his participation in direct or indirect combat operations while serving in Vietnam.  There were no entries made on his service personnel records to show he was wounded or injured a second time as a result of hostile action during this period of service.

3.  Absent corroborating evidence confirming his contention, the regulatory burden of proof necessary to support award of a second Purple Heart has not been satisfied in this case.

4.  In view of the foregoing, there is no basis for granting the 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)                                         AR20130002937



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ABCMR Record of Proceedings (cont)                                         AR20130002937



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