IN THE CASE OF:	  

		BOARD DATE:	  20 August 2014

		DOCKET NUMBER:  AR20130022036 


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.  He states medical paperwork and an after-action report denied him eligibility for the Purple Heart.  He believes he and three comrades earned the award for a friendly-fire incident that occurred in May or June 1969.  

	a. During that time, he and the other Soldiers were involved in an ambush and "interdiction action."  He and other Soldiers set up a headquarters site on a hill and radioed confirmed map coordinates to the battalion headquarters.  Suddenly, artillery rounds came in on their headquarters position.  The first round landed long and the second round landed short, wounding everyone on the hilltop.  A radio call to battalion headquarters prevented a third round from being fired. 

	b.  He spent several hours removing shrapnel and debris and dressing his and his men's wounds.  Because the wounds were essentially superficial, evacuation was not required.  He was competent to treat and remove foreign bodies, to clean lacerations, and to direct his own care.  When he filed for Purple Hearts with the battalion headquarters, he was informed that only enemy action qualified for award of the Purple Heart.

3.  He further states, in effect, that Purple Hearts were not awarded for friendly fire at the time.  If no one died in the incident, it was to be forgotten.  His wife has seen his shrapnel wounds, and a Department of Veterans Affairs (VA) doctor has documented them.  
4.  He provides:

* self-authored statements
* self-authored account of his service in Vietnam and its effects on his life
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 
* VA medical 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.  On 26 June 1967, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty (MOS) 91A (Medical Corpsman), and he was later awarded MOS 91B (Medical Specialist).  

3.  His DA Form 20 (Enlisted Qualification Record) shows in:

* item 38 (Record of Assignments) – he was assigned duty in Vietnam with Headquarters and Headquarters Company, 3rd Battalion, 503rd Infantry, 173rd Airborne Brigade, from 1 May 1969 to 19 March 1970
* item 40 (Wounds) – no entries showing he was wounded
* item 41 (Awards and Decorations) – no entry for the Purple Heart

4.  On 26 March 1970, he was honorably released from active duty.  His DD Form 214 does not show the Purple Heart.

5.  His Official Military Personnel File does not contain any documentation indicating he was wounded during his military service.

6.  His service medical records are not available for review.

7.  His name is not listed as a casualty on the Vietnam casualty listing compiled by The Adjutant General's Office, Casualty Division.

8.  A review of the Awards and Decorations Computer Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Awards and Decorations Branch of the U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant.

9.  He provides VA medical records showing, in part, that an examination on 17 October 2013 revealed a 3.4 centimeter shrapnel scar on his right buttock.

10.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while 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.  Award of the Purple Heart is announced in orders.

11.  Army Regulation 600-8-22 further provides for award of the Purple Heart 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.

12.  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.”

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not show the applicant was wounded during his service in Vietnam and he has not provided documentary evidence substantiating his claim that he was wounded as a result of friendly fire.  


2.  Until 1994, there was no statutory or regulatory basis for awarding the Purple Heart to Soldiers killed or wounded as a result of friendly fire.  Although it would now be possible to award the Purple Heart to the applicant for a wound he received as a result of friendly fire, the basic criteria for the award have not changed.  There must still be substantiating evidence verifying that he received a wound under conditions meeting the friendly fire criteria, that the wound required treatment by medical personnel, and that the medical treatment was made a matter of official record.  

3.  Unfortunately, in this case the evidentiary requirements for award of the Purple Heart have not been met.  A VA examination conducted decades after his service in Vietnam and his own statements are an insufficient basis upon which to award 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)                                         AR20130022036



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130022036



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1