IN THE CASE OF:	  

		BOARD DATE:	  26 June 2014

		DOCKET NUMBER:  AR20130019595 


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 and medically evacuated to a Forward Aid Station where he received treatment.  He believes he should have been awarded the Purple Heart.

3.  The applicant provides his DD Form 214, a Department of Veterans Affairs (VA) Statement of Claim, and two U.S. Field Medical Cards.

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 25 April 1967.  He held military occupational specialty 94B (cook).

3.  His records contain a DA Form 20 (Enlisted Qualification Record) that shows in:

* item 38 (Record of Assignments) – he served in Vietnam from 
17 December 1967 to 4 December 1968 performing the duties of a rifleman and a cook
* item 40 (Wounds) – no entry
* item 41 (Awards and Decorations) – no Purple Heart

4.  His record contains and he provided two U.S. Field Medical Cards.  These cards show that:

	a.  On 16 September 1968 he sustained a superficial wound to the right side of his chest which was cleaned and dressed.  Item 32 (Remarks) has the entry "Non Hostile Injury, No Purple Heart."

	b.  On 17 September 1968, while at Forward Aid Station Landing Zone Ann, he was treated for an infected fragment wound to his back.  The injury was determined to be in the line of duty.  It shows in item 19 (What was he doing when injured) the entry "Walking in the Line of Duty."  In addition, it shows in item 32 the entry "Friendly Wound No Purple Heart."

	c.  His VA Statement of Claim wherein he contends he was not aware that he was injured until a medic told him that he had been hit.  He was sent to a field medical hospital by helicopter for treatment.

5.  He was honorably released from active duty on 24 April 1970.  He completed 3 years of total active service.

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

7.  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 any orders for the Purple Heart pertaining to the applicant.

8.  Included as part of the Department of Defense Appropriations Act for fiscal year 1994 was an amendment to the rules governing award of the Purple Heart.  While the original rules established that the Purple Heart would be awarded to individuals killed or wounded as a result of hostile action, the amendment enabled the Secretaries of each department to award the Purple Heart to members of the armed forces who were killed or wounded in action by weapons fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States.  This ruling granted the Service Secretaries the authority to award the Purple Heart to individuals directly engaged in armed conflict who were killed or wounded as a result of "friendly fire."

9.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded 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.  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 evidence of record shows the applicant sustained a shrapnel injury to his back while walking.  Although his injury was found to be in the line of duty, in order to meet the criteria for the Purple Heart a "friendly fire" injury must have occurred during the heat of battle that was intended to damage or destroy enemy troops or equipment. 

4.  In view of the foregoing, 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)                                         AR20130019595





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ABCMR Record of Proceedings (cont)                                         AR20130019595



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