IN THE CASE OF:	

		BOARD DATE:	  20 May 2014

		DOCKET NUMBER:  AR20130016304 


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, in effect, he was wounded by shrapnel in the Republic of Vietnam.  On 16 March 1967, they were coming into a hot landing zone.

	a.  He and a member of his squad were on the left side of a helicopter that took fire as they were landing.  The door gunner slumped over and the fuselage started to fly apart from bullets hitting it.  He and his buddy jumped out of the helicopter before they landed and they were under fire as soon as they hit the ground.  He never realized he was hit at the time.

	b.  When he and the medic were working on a wounded comrade an M79 grenade round hit above them and they were sprayed with shrapnel.  The medic took out what he could see from him and his buddy and he took a couple of pieces out of the medic.

	c.  They all had blood on them and he never knew he could have been hit, so he didn't put a claim in.  All he wanted to do was to survive and make it back home.

	d.  The metal under his right collar could have come from the doorway being shot at from the enemy while they were trying to land.  That's when he and his buddy jumped out of the helicopter.

	
3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 16 July 1967
* a chronological account he states is from his company's 1966 diary
* medical records from Uniontown Hospital, Uniontown, PA
* a compact disc (CD) from Uniontown Hospital
 
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.  On 4 August 1965, he was inducted into the Army of the United States.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  He was assigned to Company B, 1st Battalion, 12th Infantry in the Republic of Vietnam from 21 July 1966 to 14 July 1967.

4.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not contain any entries describing wounds or injuries requiring medical treatment received as a result of enemy action.

5.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not show the award of the Purple Heart.

6.  On 16 July 1967, he was released from active duty.  His DD Form 214 does not show he was awarded the Purple Heart.

7.  The applicant's name does not appear on the Vietnam casualty roster.

8.  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 United States Army Human Resources Command, failed to reveal any orders awarding the applicant the Purple Heart.

9.  The hand-written diary the applicant submitted contains entries from May 1966 to 9 July (1967).  He highlighted an entry for 16 March 1966 that indicated Company B made an assault back to the LZ.  Aerial mines were found and occupied by a squad of North Vietnamese Army (NVA) soldiers.  One helicopter was destroyed and seven damaged.  The NVA lost five killed in action (KIA).  Friendly losses were three KIA (named) and seven wounded in action (WIA).  The fire base later came under mortar fire, about 35 rounds of mortar, seven more WIA.  The WIA were not named in the diary entry.

10.  The medical records he submitted from Uniontown Hospital contained a Diagnostic Radiology Report for a radiologic examination on 3 November 2012.  According to the report a linear radiodensity over the right lung apex was found, likely something on the patient's skin or hair.  The impression was a radiodense foreign matter overlying the right lung apex region.

11.  The CD he submitted contains an x-ray of his chest.  It shows a radiodensity over the right lung.

12.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9 of the version in effect at the time, stated, in pertinent part, that a brief description of wounds or injuries (including injury from gas) requiring medical treatment that were received through hostile or enemy action, including those requiring hospitalization would be entered in item 40 (wounds) of the 
DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in item 40.

13.  Army Regulation 672-5-1 (Military Awards), then in effect, provided that the Purple Heart was awarded to any member of an Armed Force or any civilian national of the United States who while serving under competent authority in any capacity with one of the U.S. Armed Services had been wounded, killed, or who had died as a result of 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.

DISCUSSION AND CONCLUSIONS:

1.  The diary the applicant submitted contains an entry for 16 March 1967 that shows Company B was involved in active combat with the enemy.  The entry shows his company suffered three KIA and a total of 14 WIA.  While the KIA were listed by name, the WIA were not identified.

2.  The radiology report found a linear radiodensity over the applicant's right lung and the x-ray on the CD he submitted shows the radiodensity mentioned in the report.  The report also states the radiodensity is likely something on the patient's skin or hair.  There is no evidence to show this is shrapnel or that he received it as a result of enemy action.

3.  In the absence of evidence showing he was wounded as a result of hostile action, the wound required treatment by medical personnel, and the treatment was made a matter of official record, there is an insufficient evidentiary basis for awarding the Purple Heart in this case.

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)                                         AR20130016304



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ABCMR Record of Proceedings (cont)                                         AR20130016304



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