IN THE CASE OF:	  

		BOARD DATE:	  8 October 2013

		DOCKET NUMBER:  AR20130003715 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Purple Heart.

2.  The applicant states:

* he was shot in the back on 19 April 1968 while serving with Headquarters and Headquarters Company, 70th Engineer Battalion in Vietnam
* there is no award of the Purple Heart on his DD Form 214 or other military record and he should have been awarded the Purple Heart for his combat wound
* he has suffered for years from his combat experiences and only now is he able to deal with what he went through

3.  The applicant provides:

* DA Form 20 (Enlisted Qualification Record)
* three pages of medical record extracts
* DD Form 214

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 5 October 1967.  He completed training and was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic).

3.  He served in Vietnam from 13 March 1968 to 12 March 1969.  While in Vietnam, he was assigned to:

* Headquarters and Headquarters Company, 70th Engineer Battalion from 18 March 1968 to 23 May 1968
* Company C, 70th Engineer Battalion from 24 May 1968 to 8 March 1969

4.  He was honorably released from active duty on 3 October 1969.  His DD Form 214 does not show award of the Purple Heart. 

5.  There is no evidence of record that shows he was injured or wounded as a result of hostile action or that he was awarded the Purple Heart.  There is nothing in the typical sources below that show he was wounded and/or injured as a result of hostile action:

	a.  Item 38 (Record of Assignments) of his DA Form 20 does not show he was ever in a patient status.

	b.  Item 40 (Wounds) of his DA Form 20 does not show a combat wound or injury.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9, stated a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization would be entered in item 40 of the DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in item 40.

	c.  A 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.
	d.  His name is not shown on the Vietnam casualty listing.  This is a microfiche listing of Vietnam Era casualties that is used to verify entitlement to the Purple Heart.

6.  The applicant provides three pages of medical extracts which show he was hit in the back by a stray bullet from an unknown location.  The medical extracts also show his course of treatment for his injury.

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 that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.  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.

8.  Army Regulation 600-8-22 also provides for award of the Purple Heart to individuals wounded or killed as a result of "friendly fire" in the "heat of battle" as long as the "friendly" projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.

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.  Although the applicant incurred an injury, his service record is void of any evidence that shows he was wounded or injured 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:

___X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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)                                         AR20130003715



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ABCMR Record of Proceedings (cont)                                         AR20130003715



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