IN THE CASE OF: 

		BOARD DATE:	    27 May 2014

		DOCKET NUMBER:  AR20130017650 


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 wounded in Vietnam during his tour of duty between October 1967 through October 1968.

3.  The applicant provides his 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 enlisted in the Regular Army on 20 February 1967.  He held military occupational specialty 11B (light weapons infantryman).
3.  His records contain:

	a.  A DA Form 20 (Enlisted Qualification Record) that shows in:

* item 38 (Record of Assignments) – he served in Vietnam from 
4 November 1967 to 12 November 1968 while assigned to Company A, 3rd Battalion (Airborne), 506th Infantry
* item 40 (Wounds) –  the entry "self inflicted wound left foot on
2 September 1968"
* item 41 (Awards and Decorations) – no Purple Heart

	b.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 1 October 1968, wherein the applicant stated that he sustained a gunshot wound to his right foot while cleaning his weapon; however, the executive officer noted that the magazine was still in the weapon and there was no cleaning equipment near the applicant at the time of the incident.

	c.  A DD Form 261 (Report of Investigation), dated 19 October 1968, shows that an investigation was conducted in regard to the circumstances of the applicant's accidental gunshot wound to his right foot.  The Remarks Section of this document states the applicant became upset when his platoon leader denied his request to return to Landing Zone (LZ) Betty to send money home to his family.  Approximately one half hour after the applicant returned to duty a shot was fired within the company perimeter and the applicant was found sitting down with the muzzle of his weapon resting on his foot.  This investigating officer found the applicant's injury to be in the line of duty (LOD).  However, on 6 November 1968, the appointing authority and the reviewing authority disapproved the investigating officer's LOD determination.

	d.  A memorandum, SUBJECT:  LOD Status, dated 14 January 1969, issued by the Office of the Adjutant General, made a final determination of the applicant's injury, incurred on 2 September 1968, in Vietnam as "Not in the line of duty - due to own misconduct."

4.  He was honorably released from active duty on 31 March 1970.  He completed 2 years, 11 months, and 21 days of total active service.

5.  A review of the Adjutant General's Office Casualty Division's Vietnam Casualty Listing does not show the applicant's name as a casualty.

6.  A 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 U.S. Army Human Resources Command Military Awards Branch, failed to reveal orders for the Purple Heart pertaining to the applicant.

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 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 applicant requests correction of his DD Form 214 to show he was awarded the Purple Heart.

2.  The criteria for award of the Purple Heart requires the submission of substantiating evidence to verify 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.  The applicant did not indicate what type of injury he sustained that would warrant award of the Purple Heart but his DA Form 20 shows he sustained a self inflicted gunshot wound to his left foot on 2 September 1968.  A subsequent LOD investigation determined the gunshot was to his right foot and was not in the LOD due to his own misconduct.

4.  His records are void of evidence and he did not provide any evidence to show he was injured on a date other than 2 September 1968 as a result of enemy action, his wounds were treated by medical personnel, and the medical treatment was made a matter of official record.

5.  Additionally, his name is not shown on the Vietnam casualty listing and there are no orders awarding him the Purple Heart in ADCARS.

6.  In the absence of documentary evidence to corroborate his claim of the events that led to his 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 requested relief.

7.  In view of the above, his request should be denied.



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)                                         AR20130017650



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ABCMR Record of Proceedings (cont)                                         AR20130017650



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