IN THE CASE OF:	  

		BOARD DATE:	  10 February 2015

		DOCKET NUMBER:  AR20140011676 


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, in effect, award of the Purple Heart (2nd Award). 

2.  The applicant states he suffered hearing loss and a slight concussion during a friendly fire accident that occurred on 30 November 1969.  While Lieutenant M__ was practicing calling mortar fire, an 81 millimeter (mm) mortar round landed directly in their position.  He was in the process of jumping off a berm that the others were standing on, and it partially shielded him, but his left eardrum blew out and he also suffered a concussion.  The daily journal clearly shows that everyone was either killed or wounded.  There were 7 Soldiers on the mission and initially, the journal showed 1 killed in action (KIA) and 6 wounded in action (WIA).  Later the number was corrected to show 2 KIA and 5 WIA.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Headquarters, 1st Infantry Brigade, 5th Infantry Division (Mechanized) General Orders Number 205, dated 12 December 1969
* general orders that posthumously awarded the Bronze Star Medal and Army Commendation Medal to third-parties
* DA Form 1594 (Daily Staff Journal or Duty Officer's Log), dated 
30 November 1969, pertaining to the 1st Battalion, 61st Infantry Regiment
* two casualty reports pertaining to third-parties extracted from the "Coffelt Database of Vietnam Casualties"

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 was inducted into the Army of the United States on 28 March 1968.

3.  His DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from 14 July 1969 to 2 January 1970.  

* Item 40 (Wounds) shows he sustained a fragment wound to the left hand on 17 November 1969
* Item 40 does not show he was wounded on 30 November 1969
* Item 41 (Awards and Decorations) shows he was awarded the Purple Heart for wounds sustained on 17 July 1969

4.  There is no evidence in his available records that indicates he was awarded the Purple Heart (2nd Award) or that he was treated for a second combat-related wound.  

5.  He was honorably released from active duty on 6 January 1970.  His DD Form 214 shows the Purple Heart among other awards.

6.  A review of the Adjutant General's Office Casualty Division's Vietnam casualty roster does not list the applicant as being wounded on 30 November 1969.

7.  He provided a DA Form 1594 that shows in item number 42, that while members of Company A, 1st Battalion, 61st Infantry Regiment were practicing firing the 81mm mortar weapon system, "3/6" element adjusted fire and there was an accident when the round landed on top of the element, resulting in 2 KIA and 5 WIA.

8.  He provided awards orders and casualty listings that confirm his contention that personnel assigned to the 1st Battalion, 61st Infantry Regiment died as a result of the 30 November 1969 incident.  

9.  He provided orders for the Purple Heart that show he was awarded the Purple Heart for wounds sustained on 17 November 1969.

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 that the wound was the result of hostile action (emphasis added), the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the Purple Heart (2nd Award) was carefully considered.  

2.  His DA Form 20 contains no entries indicating he was wounded in action on 30 November 1969 and there is no evidence in his military records that indicates he was treated for a combat-related wound sustained on 30 November 1969.  His name is not listed on the Vietnam casualty listing as being wounded twice.

3.  The governing regulation requires that substantiating evidence must be provided to verify the injury was the result of hostile action and that the injury required treatment by medical personnel.  There is no such evidence in the applicant's military records.

4.  Even if there was evidence indicating he was injured as a result of the accident on 30 November 1969, he would not be authorized the Purple Heart for those injuries since the injuries would have been determined to have resulted from a training accident, and not as a result of hostile enemy actions.

5.  In view of the foregoing, there is no basis to grant 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)                                         AR20140011676



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140011676



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1