BOARD DATE:	  18 June 2014

		DOCKET NUMBER:  AR20130017557 


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, in effect, award of the Purple Heart and any other awards as a result of his service in Vietnam.

2.  The applicant states 

	a.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was entitled to several medals and ribbons but he never received any of them and his DD Form 214 is silent for a Purple Heart.  He should have been awarded this award but he did not.  There really aren't any records of how he was injured other than a statement from a doctor saying patient was admitted to the 93rd Medical Evacuation Field Hospital on 23 December 1966 with a penetrating bamboo entry wound to right eye while in Long Binh.  

	b.  He was at Long Binh at that time and he did get a serious eye wound from a bamboo pole entering his eye while he was performing his duty in a combat-related operation.  But there were never any records to give to anyone for verification.  As far as he knows he was only questioned by an admitting doctor wanting to know what hit him in the eye.  It happened so fast he didn't even know what hit him until something came flying at him and stuck in his eye.  He believes it was some kind of a trap but he certainly can't prove that now nor can the Army disprove it.  He does have plenty of proof he lost his eye in Vietnam "and was admitted to the 93rd Medical Evacuation Hospital" and then transferred to Letterman Army Hospital, San Francisco, where he underwent three eye surgeries and spent the next seven months as a patient recovering from this eye injury.  

	c.  Due to the circumstances of how he got his eye put out, he believes he should be entitled to the Purple Heart.  He was ordered to go outside the perimeter of the compound to clear heavy vegetation because they had been experiencing nightly harassment from the enemy and they found cover in all the heavy vegetation as they were trying to push the enemy back so they could secure the perimeter.  The enemy made other attempts to infiltrate because their agenda was to blow up the ammunition dump at Long Binh, which they were successful at doing shortly after he was transported out of Vietnam.  The enemy knew they were trying to discourage them from hiding in the heavy vegetation so why wouldn't they think of placing a few booby traps around the area knowing well they would be coming through there to clear it.  He was in a combat zone and he did have a combat engineer military occupational specialty (MOS).  He has no doubt that they did place traps and the Army certainly can't prove otherwise. 

	d.  He realizes this might be a tough call but it is as likely as not that the enemy inflicted his injury and he should be awarded a Purple Heart.  He thinks there is enough probative evidence in his favor to give him the benefit of the doubt.   He draws compensation from the Department of Veterans Affairs for the loss of his eye but there is probably nothing in his records.  

3.  The applicant provides his DD Form 214 and two DA Forms 8-275-3 (Clinical Record Cover Sheet).

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 6 July 1966 and held MOS 76P (Stock Control and Accounting Specialist). 
3.  He served in Vietnam from 27 November 1966 to on or about 30 December 1966.  He was assigned to the 90th Replacement Battalion. 

4.  On 23 December 1966, he sustained an injury to his eye.  He was transferred to the 93rd Evacuation Hospital at Long Binh, Vietnam for treatment.  He provides two DA Forms 8-275-3 as follows:

	a.  DA Form 8-275-3, dated 27 December 1966, shows he sustained a corneal laceration to the right eye with no artery or nerve involvement.  He had been struck in the eye by a piece of bamboo on 23 December 1966 while on detail at the 90th Replacement Battalion, Long Binh, Vietnam.  

	b.  DA Form 8-275-3, dated 27 June 1967, shows he sustained a perforating wound to the cornea of his right eye when he was struck in the eye by a piece of bamboo at the 90th Replacement Battalion, Long Binh, Vietnam.  

5.  He was transferred in a patient status to Letterman General Hospital in San Francisco, CA, and then transferred to Fort Ord, CA, where he was separated. 

6.  Prior to separation, he underwent a separation physical wherein his eye injury was noted.  He was found medically qualified for separation. 

7.  He was honorably released from active duty on 5 July 1968.  His DD Form 214 does not show award of the Purple Heart.

8.  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.  Nothing in several typical sources show he was wounded or injured as a result of hostile action.

	a.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not show a combat wound or injury.  

	b.  His personnel records do not contain an official Army message or a Western Union telegram notifying his next of kin of an injury or wound sustained in action.  This was the proper notification of injuries at the time.

	c.  His available medical records reflect an accidental injury.  None of the available medical documents show this injury was caused by the enemy.  


	d.  His name is not shown on the Vietnam casualty listing.  This is a listing of Vietnam era casualties commonly is used to verify entitlement to award of the Purple Heart.

9.  Army Regulation 600-8-22 (Military Awards) provides that 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:

	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.

10.  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.

11.  Army Regulation 15-185 (ABCMR) states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the applicant was participating in direct or indirect combat operations is a necessary prerequisite, but is not the sole justification for the award.

2.  The criteria for an award of 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 treatment by medical personnel, and the medical treatment must have been made a matter of official record.

3.  In this case, the evidence of record shows the applicant was clearing vegetation around a perimeter in Vietnam when he sustained an eye injury and later received treatment for injuring his eye.  His injury appears to be accidental.  Nowhere in the available treatment records does it show the injury was a result of hostile action.  

4.  The applicant's service record is void of any evidence that he was wounded or injured as a result of enemy action.  His name is not listed on the Vietnam casualty listing.  There is nothing in multiple typical sources that confirm he was wounded as a result of hostile action or that he required treatment by medical personnel.

5.  Notwithstanding his sincerity, in the absence of additional official documentary evidence to corroborate the events that led to his alleged injury, or additional documentation that conclusively shows he was wounded or injured as a result of hostile action and treated for those wounds, 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 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)                                         AR20130017557





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ABCMR Record of Proceedings (cont)                                         AR20130017557



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