IN THE CASE OF:	  

		BOARD DATE:	 9 October 2014 

		DOCKET NUMBER:  AR20140003736 


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 that in July 1971 he was wounded and should have been awarded the Purple Heart.  While on combat patrol in Southwest Chu Lai he was wounded and medically evacuated to the 91st Evacuation Hospital where he received treatment for head wounds (shrapnel).  When the Americal Division stood down he was transferred to the 101st Airborne Division and the clerk error occurred.

3.  The applicant provides copies of the following:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Department of Veterans Affairs Form 21-4138 (Statement in Support of Claim)
* two support letters

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant's military records show he was inducted into the Army of the United States on 16 September 1970 and he served as a light weapons infantryman.  He served in Vietnam from 26 February 1971 through 1 December 1971, during two campaigns.  He was assigned to:

* Company D, 1st Battalion, 6th Infantry Regiment, 23rd Infantry Division, from 11 March to 2 November 1971
* Company A, 3rd Battalion (Airmobile), 187th Infantry Regiment, 101st Airborne Division (Airmobile), from 11 to 27 November 1971

3.  His records contain a Standard Form 88 (Report of Medical Examination) that shows he underwent an examination for the purpose of separation.  In item 40 (Skin, Lymphatics) he indicated "shrapnel at right ear and neck to problems from…. (the remainder of the sentence is illegible).  On the form he also stated he was in good health.  He was found qualified for separation.

4.  He was released from active duty on 16 March 1972.  His DD Form 214 shows he was awarded or authorized the:

* Air Medal
* Army Commendation Medal
* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Expert Marksmanship Qualification Badge with Rifle Bar

5.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Records) does not show he was wounded in action while serving in Vietnam.  Item 41 (Awards and Decorations) of this form lists all the awards shown on his DD Form 214 and includes the Air Medal (2nd Award) and the Combat Infantryman Badge.

6.  There are no available orders authorizing or awarding him the Purple Heart during his period of service in Vietnam.

7.  His name is not shown on the Vietnam casualty roster.  

8.  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 U.S. Army Human Resources Command, failed to reveal any award orders for the Purple Heart pertaining to the applicant. 

9.  He provided two support letters, dated 9 and 10 February 2014, wherein the individuals stated they were members of his unit in Vietnam.  They stated the applicant sustained a head wound during one of the clashes in their unit's area of operations.  The applicant was medically evacuated to the 91st Evacuation Hospital in Chu Lai.  They later learned he was treated at the hospital for the head wound and released back into the company for restricted duty.

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

   a.  The Purple Heart is awarded for a wound sustained as a result of enemy 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.

   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:

		(1)  Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action.

		(2)  Injury caused by enemy placed mine or trap.

		(3)  Injury caused by enemy released chemical, biological, or nuclear agent.

		(4)  Injury caused by vehicle or aircraft accident resulting from enemy fire.



		(5)  Concussion injuries (TBI) caused as a result of enemy generated explosions.

   d.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart include accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding item 40 of an SF 88 contained in the applicant's record, wherein he stated he sustained shrapnel wounds, and the statements provided by two former members of his unit, the evidence does not sufficiently show he was wounded by the enemy to such an extent that required treatment by medical personnel.  Additionally, his complete Army medical records, which are necessary to confirm his wounds required treatment, are not available for review and his name does not appear on the Vietnam casualty roster.  

2.  By regulation, to be awarded the Purple Heart it is necessary to establish that a Soldier was wounded or injured in action.  There must be evidence that confirms the wound for which the award is being made was received as a direct result of, or was caused by enemy action, that the wound was treated by medical personnel, and the treatment was made a matter of official record.  

3.  In the absence of such evidence, there is insufficient evidence upon which to base awarding him the Purple Heart and its addition to his DD Form 214.

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)                                         AR20140003736





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ABCMR Record of Proceedings (cont)                                         AR20140003736



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