BOARD DATE:	  7 November 2013

		DOCKET NUMBER:  AR20130003591 


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:

* he did not receive the Purple Heart following an injury due to hostile action on 19 April 1971
* his AH-1G attack helicopter was hit by enemy fire resulting in a forced hard landing
* upon landing his seat belt failed and he was thrown into the dash
* within a few days he could no longer bend fully or straighten his leg
* on 21 April 1971, he was suspended from flight duty
* he was medically evacuated from Vietnam to Pensacola Naval Air Station
* he was assigned to the 349th Aviation Company, Germany, after treatment
* he was awarded the Bronze Star Medal and Air Medal during his combat service
* he is now 100 percent disabled and attempting to get his personal and military history and service in order to pass on to his family

3.  The applicant provides a DA Form 759 (Individual Flight Record and Flight Certificate – Army) for the period May through June 1971.



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.  With prior enlisted service, on 16 November 1970, the applicant was appointed as a warrant officer one in the U.S. Army Reserve (USAR).  After completing training, he served as a rotary-wing aviator.

3.  A review of his records shows he completed the following periods of foreign service: 

* Vietnam from 15 February 1971 to 19 May 1971 assigned to B Troop, 3rd Squadron, 17th Air Cavalry
* Germany from 21 August 1971 to 16 August 1976 assigned to the 349th Aviation Company (re-designated the 48th Aviation Company)

4.  A Standard Form 502 (Narrative Summary), dated 1 August 1979, shows, in part:

* in late 1969, he was involved in a motorcycle accident without definite knee injury; however, since that time he had experienced intermittent anterior-superior knee pain
* in May or June 1971, he was air evacuated from the Republic of Vietnam due to right knee disease/pain, exacerbated by prolonged flight with his knee in a 45 degree flexed position
* following physical therapy and exercise the knee problem subsided and he was returned to flight status

5.  Medical Board Proceedings, dated 1 August 1979, show he was referred to a Physical Evaluation Board (PEB) for several diagnoses, including mild chondromalacia of the right knee.

6.  A DA Form 199 (PEB Proceedings), dated 14 August 1979, shows he was found physically unfit for continued military service by reason of insulin-dependent diabetes mellitus.  The PEB recommended permanent retirement with a 50 percent disability rating and he concurred with the recommendation.  The PEB found the diagnosis of mild chondromalacia of the right knee to be below rating criteria.

7.  On 2 October 1979, the applicant was honorably retired for permanent disability.  His DD Form 214 for the period ending 2 October 1979 does not show the Purple Heart.  

8.  Nothing in several typical sources show he was injured or wounded as a result of hostile action or that he was awarded the Purple Heart:

* his records do not contain general orders authorizing him award of the Purple Heart
* his name is not shown on the Vietnam casualty listing
* review of the Awards and Decorations Computer Assisted Retrieval System maintained by the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders for the Purple Heart pertaining to him
* his records do not contain an official Army notification or a Western Union telegram notifying his next of kin of an injury and/or wound(s) received in action

9.  His complete medical records are not available for review.

10.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained while in action against and 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.

	a.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:  injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy generated explosions.

	b.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows:  frostbite or trench foot injuries; heat stroke; food poisoning not caused by enemy agents; chemical, biological, or nuclear agents not released by the enemy; battle fatigue; disease not directly caused by enemy agents; accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; self-inflicted wounds, except when in the heat of battle and not involving gross negligence; post-traumatic stress disorders; and/or jump injuries not caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The criteria for the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.

2.  The applicant's service record is void of any evidence that shows he was wounded or injured as a result of hostile action.  His name is not listed on the Vietnam casualty listing.  His available medical records fail to show any injuries sustained as a result of hostile action.  

3.  Regrettably, in the absence of documentation that conclusively shows he was wounded or injured as a result of enemy action and treated for those wounds, there is an insufficient evidentiary basis for awarding him the Purple Heart.

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)                                         AR20130003591



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130003591



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1