BOARD DATE:	  9 September 2014

		DOCKET NUMBER:  AR20130020142 


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 that his service medical records clearly show he was wounded during a rocket attack on 14 April 1969, during his service in Vietnam:

3.  The applicant provides:

* DD Form 214
* DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty),
* his DA Form 20 (Enlisted Qualification Record)
* Standard Form (SF) 180 (Request Pertaining to Military Awards)
* two pages of SF 600 (Chronological Record of Medical Care)
* extracts of Army Regulation 600-8-22 (Military Awards)
* two pages of pictures
* two memoranda
* six letters 
* an email

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests retroactive award of the Purple Heart for the applicant.  

2.  Counsel states: 

	a.  the applicant's medical records show he was treated for wounds received during a rocket attack during the night of 13 and/or 14 April 1969;

	b.  that Army Regulation 600-8-2 states in:

		(1)  paragraph 2-8f, "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 proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award."

		(2)  paragraph 2-8i, "it is not intended that such a strict interpretation of the requirement for the wound or injury to be caused by direct result of hostile action be taken that it would preclude the award being made to deserving personnel. Commanders must also take into consideration the circumstances surrounding an injury, even if it appears to meet the criteria."

		(3)  paragraph 2-8e, "a wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions listed above.  A physical lesion is not required, however, the wound for which the award is made must have required treatment by medical personnel and records of medical treatment for wounds or injuries received in action must have been made a matter of official record."

	c.  the denial letter, dated 25 February  2013, clearly adheres to a stricter interpretation of eligibility than is required by Army Regulation 600-8-2 as the author fails to "take into consideration is the degree to which the enemy caused the injury.”  The evidence in the service record plainly states the underlying cause as "rocket attack."

	d.  the denial letter states in this regard, the available documentation does not clearly state whether the applicant's injuries were caused by the rocket attack or if his injuries were incurred accidently during the rocket attack.  It is a conditioned response required during training.  If that same Soldier was injured while reacting it is a combat wound.

	e.  the applicant's service records clearly indicate that he is deserving of a retroactive award of the Purple Heart in accordance with Army Regulation 600-8-22, paragraph 2-8k(3).  

		(1)  he was wounded as result of enemy action;
		(2)  his wound was treated by a captain in the Medical Corps; and

		(3) all treatment is documented in his official Army service medical records to include his follow-up treatment.

3.  Counsel does not submit any additional documents.
	
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 was inducted into the Army of the United States on 6 August 1968.  He served in Vietnam from 13 January 1969 to 
12 January 1970.

3.  His DA Form 20 shows in:

	a.  item 38 (Record of Assignments), he was assigned to the 557th Engineer Company (Light Engineer) from 21 January 1969 to 9 January 1970; 

	b.  item 38, no entry indicating he was in a patient status;

	c.  item 40 (Wounds), is blank; and 

   d.  item 41 (Awards and Decorations), does not list award of the Purple Heart.

4.  The applicant submitted:

	a.  two pages of his SF Form 600, which show that on 18 April 1969 he was treated at the 15th Medical Detachment when he lacerated his right leg on a picket during a rocket attack.

	b.  a letter, dated 2 May 1969, wherein he highlights "his leg is alright now, yes, we are that close to the fighting, that's (the) way I had to jump off the bunker fast before it hit us, I had to have seven stitches in my leg, I tell you one thing, it hurt when I did it, and they recommended me for a Purple Heart but I haven't heard anything about it."

	c.  four pictures taken June 1969 which he indicates are of him and others who were killed in Vietnam.

5.  On 5 August 1970, he was released from active duty.  He had completed 
2 years of active service.  This DD Form 214 shows he was awarded the National Defense Service Medal, Vietnam Service Medal, and Republic of Vietnam Campaign Medal with "1960" Device.

6.  There are no orders in the available records that show he was recommended for award of the Purple Heart.

7.  Review of the Adjutant General's Office Casualty Division's Vietnam casualty listing does not show the applicant as a casualty.

8.  Review of the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the U.S. Army Human Resources Command (HRC) Military Awards Branch, 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.

9.  The applicant submitted:

	a.  a letter to HRC, dated 18 January 2013, requesting retroactive award of the Purple Heart and Combat Infantryman Badge for the applicant. 

	b.  Permanent Order Number 028-07, dated 28 January 2013, awarding the applicant the Army Good Conduct Medal for the period 6 August 1968 to 
5 August 1970.

	c.  a memorandum from the HRC, Assistant Chief, Awards and Decorations Branch, dated 15 February 2013, stating that based on the documents and additional resources available, the Awards and Decorations Branch was unable to verify the applicant's entitlement to the Purple Heart or Combat Infantryman Badge.

	d.  a DD Form 215, dated 25 February 2013, to show that the applicant's 
DD Form 214 was corrected to show award of the Army Good Conduct Medal, Vietnam Service Medal with four bronze service stars, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Sharpshooter Marksmanship Qualification Badge with Machinegun Bar, and Marksman Marksmanship Badge with Rifle and Automatic Rifle Bars.

	e.  counsel's request and SF 180 to the National Personnel Record Center (NPRC), dated 21 March 2013, requesting a copy of the applicant's unit's morning report for 14 and/or 15 April 1969, showing that he was wounded on the night of 13 or 14 April 1969. 

	f.  a letter from the NPRC, dated 11 April 2013, which stated that their office found no morning reports showing any rocket attacks on the applicant's unit from March to May 1969.

	g.  counsel's request, dated 16 April 2013, to the National Archives requesting a copy of the applicant's casualty report. 

	h.  an email, dated 25 April 2013, from the National Archives stating that there were no daily staff journals or casualty reports among the records.

	i.  counsel's request to HRC, for consideration of a retroactive award of the Purple Heart for the applicant, dated 8 July 2013. 

	j.  the HRC, Assistant Chief, Awards and Decorations Branch’s response, dated 21 August 2013, showing that as stated in their previous request they were still unable to verify the applicant's request for award of the Purple Heart.

10.  Army Regulation 600-8-22 states 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 evidence provided by the applicant and his counsel of record was carefully considered and it was determined that there is insufficient evidence to support his request.

2.  Evidence of record shows he was treated by medical personnel for a laceration to his right leg by a picket during a rocket attack.  However, there is no corroborating evidence of record which shows he was injured or wounded as a result of enemy action.  The applicant's name is not listed on the Vietnam casualty listing or on his DA Form 20.  There is no evidence in his service personnel records that shows he was wounded or injured as a result of hostile action or treated for such wounds.

3.  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 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)                                         AR20130020142





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ABCMR Record of Proceedings (cont)                                         AR20130020142



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