IN THE CASE OF:  

		BOARD DATE:  9 September 2014	  

		DOCKET NUMBER:  AR20140000591 


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 he was put in for the Purple Heart but it was turned down.  He feels that there was injustice.   He is sending some of his records so the Board can see there was incoming when he was injured in Vietnam. 

3.  The applicant provides

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Clinical records/consult sheets
* Department of Veterans Affairs (VA) rating decision

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 enlisted in the Regular Army on 23 August 1968 and he held military occupational specialty 55B (Ammunition Storage Specialist). 

3.  He served in Vietnam from 11 February 1969 to 31 January 1970.  He was assigned to the 576th Ordnance Company, 3rd Ordnance Battalion. 

4.  He was honorably released from active duty on 13 August 1970.  His DD Form 214 does not show he was awarded the Purple Heart.

5.  There is no evidence of record that shows he was injured or wounded as a result of hostile action or that he was awarded the Purple Heart.  Nothing in several typical sources shows he was wounded or injured as a result of hostile action.

	a.  His available medical records reflect an accidental injury.  None of the available medical documents show this injury was caused by the enemy.  His separation physical does not mention a combat injury.  Additionally, he provides: 

		(1)  Clinical Record-Consult Sheet, dated 1 May 1970, which shows he was involved in an ammunition dump explosion in April 1969.  He appears to have sustained a mild metal fragmentary injury to his back.  

		(2)  Clinical Record-Consult Sheet, dated 18 August of an unknown years. The reason for the consult is listed as "Multiple Fragment Wound (MFW), right low back in May, still having pain all of the time and especially when supine."   Additionally, the "Consultation Report" section of this form shows the entry "one small metallic fragment in lower right back, muscuskeletal is tender in the area; has ………..[illegible] advice no prescription at this time." 

		(3)  VA rating decision, dated 28 August 2013, awarding him service-connected disability compensation for residual shell fragment wound to left lower chest and scars in the lumbar spine from shell fragment wound. 

	b.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not show a combat wound or injury.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9, stated a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization would be entered in item 40 of the DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in item 40.

	c.  His personnel records do not contain an official Army message or a Western Union telegram notifying his next of kin of an injury or wound sustained in action.  This was the proper notification procedure for injuries at the time.

	d.  His name is not shown on the Vietnam casualty listing.  This is a listing of Vietnam era casualties commonly is used to verify entitlement to award of the Purple Heart.

6.  Army Regulation 600-8-22 (Military Awards) provides that 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 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:

	a.  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; and/or concussion injuries caused as a result of enemy generated explosions.

	b.  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; and/or jump injuries not caused by enemy action.

7.  Army Regulation 15-185 (ABCMR) states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria.  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 applicant was participating in direct or indirect combat operations is a necessary prerequisite, but is not the sole justification for the award.

2.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify that 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.  In this case, the evidence of record shows the applicant was involved in an ammunition dump explosion when he appears to have sustained his low back injury and later received treatment for this injury.  However, his injury appears to be accidental.  Nowhere in the available treatment records does it show the injury was a result of hostile action (i.e., that there was incoming enemy rounds that caused the explosion).  

4.  The applicant's service record is void of any evidence that shows he was wounded or injured as a result of enemy action.  His name is not listed on the Vietnam casualty listing.  There is nothing in multiple typical sources that confirm he was wounded as a result of hostile action or that he required treatment by medical personnel.

5.  Notwithstanding his sincerity, in the absence of additional official documentary evidence to corroborate the events that led to his alleged injury, or additional documentation that conclusively shows he was wounded or injured as a result of hostile action and treated for those wounds, 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)                                         AR20140000591





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ABCMR Record of Proceedings (cont)                                         AR20140000591



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