IN THE CASE OF:	  

		BOARD DATE:	  29 July 2014

		DOCKET NUMBER:  AR20130020213 


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 when he was in Vietnam a diesel fuel water-heating stove blew up on him.  While he was in the battalion hospital a field officer informed him that an investigation determined that it was enemy sabotage that caused the explosion and he was being recommended for a Purple Heart.  He is 100 percent service connected disabled.   

3.  The applicant provides:

* a court document documenting his name change
* a letter, dated 21 January 2013, from the Department of Veterans Affairs (VA)
* a letter, dated 25 October 2013, from the Awards and Decorations Branch, U.S. Army Human Resources Command (HRC)

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.  He previously served in the Regular Army (RA) from 5 September 1961 to 
1 July 1964.  The characterization of his service was honorable.  His separation physical, dated 24 April 1964, noted scars on his upper right arm, right forearm, and right wrist.

3.  On 11 September 1964, he enlisted in the RA for 3 years.  

4.  He was assigned to Company A, 864th Engineer Battalion in the Republic of Vietnam from 25 August 1966 to 12 August 1967.

5.  Item 40 of his DA Form 20 (Enlisted Qualification Record) does not contain any entries describing wounds or injuries received as a result of enemy action that required medical treatment.

6.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not show award of the Purple Heart.

7.  On 18 February 1968, he was released from active duty.  His DD Form 214 does not show he was awarded the Purple Heart.  His separation physical notes scars on his upper arm and forearm.  However, these appear to be the same scars noted on his separation physical, dated 24 April 1964.  His DD Form 214 does not show he was awarded the Purple Heart.

8.  There are no orders in the applicant's military service records awarding him the Purple Heart.

9.  His service medical records were not available for review and his name does not appear on the Vietnam casualty roster.

10.  In a Petition for a Writ of Mandamus, dated 4 May 2002, filed before the U.S. Court of Veterans Appeals the applicant stated that on or about January 1967 in Cam Ranh Bay, Vietnam he was lighting a water heating stove which, due to an act of enemy sabotage, exploded on him.

11.  He provides a VA letter, dated 21 January 2013, stating his combined service-connected evaluation is 100 percent.  However, the letter does not indicate the disability or disability for which he received the service-connected rating.
12.  A letter, dated 25 October 2013, from HRC to the applicant's Congressional Representative stated HRC was unable to authorize the applicant the award of the Purple Heart.  HRC noted the applicant corresponded with their office multiple times through other members of Congress in 1994, 2001, 2003, and 2009 concerning his request for the Purple Heart.  However, they had not received the required official military documentation that conclusively showed he was injured as a result of enemy action.

13.  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 Military Awards Branch of the HRC, failed to reveal any orders awarding the Purple Heart to the applicant.

14.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9 of the version in effect at the time, stated, in pertinent part, that a brief description of wounds or injuries (including injury from gas) requiring medical treatment that were received through hostile or enemy action, including those requiring hospitalization would be entered in item 40 (wounds) of the DA Form 20.  This regulation further stated the date the wound or injury occurred would also be placed in item 40.

15.  Army Regulation 672-5-1 (Military Awards), then in effect, provided that the Purple Heart was awarded to any member of an Armed Force or any civilian national of the United States who while serving under competent authority in any capacity with one of the U.S. Armed Services had been wounded, killed, or who had died as a result of a wound sustained 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.

DISCUSSION AND CONCLUSIONS:

1.  The only mention of an exploding diesel fuel water-heating stove in his military records is in the writ he filed before the U.S. Court of Veterans Appeals.  There is no substantive evidence and he has provided no evidence that shows he was wounded as a result of hostile action.  The investigation he contends determined the stove blew up due to enemy sabotage is not available.

2.  His service medical records were not available for review.  He is not listed on the Vietnam casualty listing.


3.  In the absence of evidence showing he was wounded as a result of hostile action, that the wound required treatment by medical personnel, and that the treatment was made a matter of official record, there is an insufficient evidentiary basis for awarding 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)                                         AR20130020213



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ABCMR Record of Proceedings (cont)                                         AR20130020213



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