BOARD DATE:	  21 August 2014

		DOCKET NUMBER:  AR20140000432 


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:

	a.  He was injured in Vietnam and did not receive the Purple Heart.  He was told by his first sergeant that the Purple Heart would be forthcoming, but he did not receive it.  His DA Form 20 (Enlisted Qualification Record) shows other awards were not issued as well.  He has been unable to find medical records from his service in Vietnam, but he did see a doctor after the injury and knows there would have been a record of it.

	b.  His troop was at Landing Zone (LZ) Two Bits when a firefight abruptly broke out.  Taking cover, he fell on an engineer stake that went up his right armpit.  He was stitched up by a medic in another unit that night.  His arm was taped to his torso until a military doctor came days later.

	c.  He now needs this documentation of his service in Vietnam so he can be placed in the correct control group with the Department of Veterans Affairs (VA).  

3.  He provides excerpts from his VA medical records, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a page from his DA Form 20, and a statement from Colonel (COL) (Retired) G_____ D. B_____.  



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 14 November 1966, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 71B (Clerk Typist).  

3.  His DA Form 20 shows in:

* item 31 (Foreign Service) – he was credited with service in Vietnam from 16 April 1967 through 17 April 1968
* item 38 (Record of Assignments) – throughout his service in Vietnam he was assigned to principal duty as a clerk typist and troop clerk with 1st Squadron, “9th Cavalry Division” (Airmobile) (i.e., 1st Cavalry Division)
* item 40 (Wounds) – no entries showing he was wounded
* item 41 (Awards and Decorations) – no entry for the Purple Heart 

4.  On 2 October 1969, he underwent a medical examination for the purpose of release from active duty.  He did not report having been injured in Vietnam, and the examining physician did not note any such injury.  

5.  On 13 November 1969, he was honorably released from active duty.  His DD Form 214 does not show that he was awarded the Purple Heart.  

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

7.  Review of the Vietnam casualty listing compiled by The Adjutant General's Office, Casualty Division, does not show the applicant's name listed as a casualty.

8.  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.  The applicant provides a notarized statement, dated 8 March 2014, from COL G_____ D. B______, who states the applicant was under his command and was wounded during June 1967 while in Vietnam.  He states the applicant received a combat-related wound to his right armpit while responding to an enemy attempt to penetrate the perimeter of LZ Two Bits during the hours of darkness.  While responding to the attack, the applicant was taking his defensive position and fell on a metal stake which penetrated his right arm pit.  He manned his position for hours until the gunfire subsided and the attack was repelled.  He was treated by a combat medic and transported to their supporting field hospital for further medical attention.  He was treated by a doctor, and his right arm was bandaged and immobilized for several days.  He recovered and continued his duties with the unit until the end of his tour.  He states the applicant deserved the Purple Heart for the wound he received on that night in June 1967.  

10.  He provides excerpts from his VA medical records showing:

* on 30 July 2013, a radiological examination of his right shoulder found he has a 1.1 centimeter elongated corticated ossification along the posterior margin of the glenoid that may be related to prior trauma
* on 30 July 2013, an entry was made indicating he had incurred a right axilla penetration wound in 1967 in Vietnam

11.  Army Regulation 600-8-22 (Military Awards) states:

	a.  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.

	b.  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.

	c.  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
* concussion injuries caused as a result of enemy generated explosions

	d.  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 evidence of record does not support the applicant's request for award of the Purple Heart.  

2.  The applicant and his former commanding officer describe the applicant's injury as having occurred when he was taking cover during a firefight.  Based on these descriptions, it appears that his injury was accidental.  The Purple Heart is not awarded for an accidental injury, even if the accidental injury is incurred while taking cover under enemy fire.  

3.  In the absence of official documentation showing he was injured as a result of hostile action (other than by accident), that the injury required treatment by medical personnel, and that the medical treatment was made a matter of official record, there is an insufficient basis for awarding him the Purple Heart or correcting his record to show this award.




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)                                         AR20140000432





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ABCMR Record of Proceedings (cont)                                         AR20140000432



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