IN THE CASE OF:	  
		BOARD DATE:	  26 June 2014

		DOCKET NUMBER:  AR20130018582 


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 was injured in combat with the enemy in September 1968.  He stepped into a punji pit while engaged in combat and injured his left foot while in Kontum Province, South Vietnam.  He was medically evacuated to Japan and then transferred to Letterman Army Medical Hospital at Fort Ord, CA where he was assigned to the Medical Hold Company, pending discharge.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty)
* DD Form 1343 (Notification of Change in Service Member's Official Records)

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's records show he enlisted in the Regular Army on 24 November 1965 and he held military occupational specialty 11B (Light Weapons Infantryman).

3.  He served in Vietnam from 20 March 1967 to 15 August 1968.  He was assigned to the:

* 40th Infantry Platoon (Scout Dogs) from on or about 7 August 1967 to 15 March 1968
* E Company, 50th Airborne Infantry Long Range Patrol from 16 March to 15 August 1968

4.  On 15 August 1968, he was transferred in a patient status to the U.S. Army Hospital in Japan and on 23 August 1968, he was transferred to the U.S. Army Hospital at Fort Ord, CA.  The nature and specific reasons for this medical transfer are unknown.

5.  He was honorably released from active duty on 4 October 1968.  His DD Form 214, as amended by his DD Form 215, does not list the Purple Heart.

6.  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/injured as a result of hostile action:

	a.  Item 40 (Wounds) of his contemporaneous DA Form 20 (Enlisted Qualification Record) 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.

	b.  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 the applicant.

	c.  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.

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

	e.  His medical records are not available for review with this case.

7.  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
* 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 orders that show he was wounded or injured as a result of combat.  His name is not listed on the Vietnam casualty listing.  His medical records are not available for review with this case.  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.

3.  His records show he was transferred in a patient status to Japan and then on to Fort Ord, CA.  However, nowhere does it show his medical transfer was a result of a combat injury that was caused by the enemy.  

4.  The applicant's contention and sincerity are not in question.  However, 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)                                         AR20130018582





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ABCMR Record of Proceedings (cont)                                         AR20130018582



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