IN THE CASE OF:	  

		BOARD DATE:	  29 January 2015

		DOCKET NUMBER:  AR20140009646 


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 her deceased brother, a former service member (FSM), be awarded the Purple Heart.

2.  The applicant states her brother was wounded near Dak To in Vietnam on 5 June 1968.  He sustained a gunshot wound to his right hand by his M-79 grenade launcher which accidentally discharged while on duty.  His injury is shown as in line of duty and he was ultimately processed for disability.  He passed away in July 1994 and she feels although his wound was caused by an accident, it was still in line of duty and should entitle him to the Purple Heart. 

3.  The applicant provides

* Her certificate of live birth
* FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* FSM's DA Form 20 (Enlisted Qualification Record)
* FSM's Clinical records
* FSM's enlistment contract
* FSM's death certificate

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 FSM's records show he enlisted in the Regular Army on 18 October 1966 and he held military occupational specialty 11B (Light Weapons Infantryman). 

3.  He served in Vietnam from 3 December 1967 to 5 July 1968.  He was assigned to Company B, 2nd Battalion, 506th Infantry Regiment.

4.  On 5 June 1968, he was carrying his M-79 weapon system, loaded with a canister round.  As he was using the weapon as a crutch, he had his right hand over the end of the barrel.  The weapon discharged when the butt struck the ground, striking his right hand.  He sustained extensive nerve, muscle, and bone injuries. 

5.  Following extensive surgery and evaluation, his conditions were ultimately considered by a physical evaluation board (PEB).  The PEB determined the loss of his right hand and other paralysis rendered him unfit and recommended his permanent retirement by reason of disability.  He concurred. 

6.  He retired from active duty by reason of disability on 22 March 1972 and he was placed on the Retired List in his retired rank/grade of sergeant/E-5 on 23 March 1972.  His DD Form 214 does not show he was awarded the Purple Heart.

7.  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.

8.  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.

9.  Item 40 (Wounds) of his DA Form 20 shows he was wounded on 5 June 1968 (gunshot wound to the right hand) with the entry not as a result of enemy action. 
10.  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.

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 FSM was involved in an accidental discharge of a weapon system in Vietnam and later received treatment for this injury.  However, his injury was clearly 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 discharge).
4.  The FSM'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.  There appears to be an insufficient evidentiary basis for granting her requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others to know that the sacrifices the FSM made in service to the United States during the Vietnam War are deeply appreciated.  The applicant and all Americans should be justifiably proud of the FSM's service in arms.



      ____________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)                                         AR20140009646





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ABCMR Record of Proceedings (cont)                                         AR20140009646



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