IN THE CASE OF:	   

		BOARD DATE:	  23 April 2015

		DOCKET NUMBER:  AR20140014454 


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 correction of his records to show award of the Purple Heart.

2.  The applicant states he served in the Republic of Vietnam (RVN) with Company C, 1st Battalion, 46th Infantry, 198th Light Infantry Brigade (LIB), Americal Division.  

   a.  He states that his mortar platoon was sent into the jungle for a few days.  The unit received sniper fire and encountered booby traps.

   b.  On the morning of 13 March 1968, he was detailed to bury trash from the night before.  As he was preparing to dig a hole, another Soldier (Private First Class (PFC) F____ R. M____, Jr.) chided him about his stature and volunteered to dig the hole.  When PFC M____ stuck his shovel into the ground, the ground exploded and PFC M____ fell to the ground.  Sergeant First Class (SFC) R____ L____ was standing off to the applicant's side and he sustained fatal injuries to his stomach.

   c.  He states that it felt like someone hit him on the right side of his head with a baseball bat.  He could not hear out of his right ear.  He also noticed that he had been hit with shrapnel in his left arm, shoulder, and on the side of his head.

   d.  Over the years, he has been trying to obtain copies of his records, but he was told they were either lost or burned by the fire in 1973.  
   e.  He states that the Vietnam Veterans Memorial ("The Wall") shows the two Soldiers' deaths are categorized as non-hostile.  He adds that the platoon may not have been under fire at the time, but he was later told that the cause of the incident was a booby trap.  He does not understand why the Soldiers who were killed and injured in the incident were not awarded the Purple Heart.

3.  The applicant provides copies of a self-authored statement (summarized above), his request for transfer, pages 3 and 4 of his DA Form 20 (Enlisted Qualification Record), his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), Department of Veterans Affairs (VA) claim, and two extracts from "The Wall."

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 U.S. Army on 28 September 1966.  He was awarded military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman).

3.  His DA Form 20 shows in –

* item 31 (Foreign Service) service in Vietnam from 4 October 1967 through 20 September 1968
* item 38 (Record of Assignments) –

* Company C, 1st Battalion, 46th Infantry, 198th LIB, from 4 October 1967 through 24 April 1968
* Company B, 23rd Supply and Transportation Battalion, Americal Division, from 25 April through 9 July 1968
* Headquarters and Headquarters Company, 11th LIB, from 10 July through 16 September 1968

* item 40 (Wounds) is blank (no entries)
* item 41 (Awards and Decorations) does not list the Purple Heart

4.  The applicant's DD Form 214 shows he was honorably released from active duty on 20 September 1968.  He had completed 1 year, 11 months, and 23 days of total active duty service this period that included 11 months and 17 days of foreign service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) does not list the Purple Heart.

5.  A review of the applicant's military personnel records failed to reveal any orders or other evidence that shows he was awarded the Purple Heart.

6.  A review of The Adjutant General's Office, Casualty Division's Vietnam casualty roster failed to reveal the applicant's name.

7.  A 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.

8.  In support of his application the applicant provides the following documents.

   a.  A copy of a DA Form 2496 (Disposition Form), subject:  Request for Transfer, dated 12 April 1968, that shows the applicant requested transfer to a non-combat unit due to an injury incurred on 13 March 1968 because he was medically unqualified to perform in his MOS.  On 21 April 1968, his request was approved for reassignment to Company B, 23rd Supply and Transportation Battalion for duty in MOS 64A1O as a Light Truck Driver.

   b.  VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative), dated 21 July 2014, that shows the applicant appointed J____ M____, National Service Officer, The Military Order of the Purple Heart, to act as his representative in his VA claim.

   c.  Two extracts from the Vietnam Veterans Memorial website
(www.thewall-usa.com) that show –

* SFC R____ L____, 198th LIB, died of non-hostile injuries (accident), on 13 March 1968 at Quang Tin, South Vietnam
* PFC F____ R. M____, Jr., 198th LIB, died of non-hostile illness/injury (accident), on 23 March 1968 at Quang Tin, South Vietnam
9.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.  It shows the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.

   a.  A wound is defined as an injury to any part of the body from an outside force, element, or agent sustained in action in the face of the armed enemy or as a result of a hostile act of such enemy.
   
   b.  In order to support awarding a member the Purple Heart, 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.

   c.  It also provides examples of injuries or wounds which clearly do not justify award of the Purple Heart and lists, in pertinent part, accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for award of the Purple Heart was carefully considered.

   a.  The applicant does not provide and the record does not contain any contemporaneous medical records that show he was treated for injuries or wounds that were the result of hostile action in the RVN.

   b.  The applicant provides evidence pertaining to two Soldiers whom he relates were serving with him at the time of the incident in question.  The evidence of record shows the two Soldiers died as a result of non-hostile injuries, on 13 March and 23 March 1968, at Quang Tin, South Vietnam.

   c.  It is acknowledged that the 23 March 1968 date may be in error or reflect that one of the Soldiers died 10 days after he was injured (on 13 March 1968).  In any event, the evidence of record clearly shows the Soldiers died as a result of an accident (i.e., non-hostile injuries).

2.  The applicant's military service records do not show any evidence that he was wounded or injured in action as a result of a hostile act of the enemy.
   
   a.  The applicant's name is not listed on the Vietnam casualty roster.

   b.  There are no orders or any other evidence that shows he was awarded the Purple Heart.

   c.  Thus, the evidence of record does not support the applicant's claim.

3.  Therefore, in view of the foregoing, there is an insufficient evidentiary basis for granting the request.

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)                                         AR20140014454



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ABCMR Record of Proceedings (cont)                                         AR20140014454



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