IN THE CASE OF:  
	  

		BOARD DATE:  2 April 2015	  

		DOCKET NUMBER:  AR20140014459 


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 (PH).

2.  The applicant states:

* he was told by those in command that he was not authorized a PH because he was wounded as a result of friendly fire  
* he meets the regulations for the PH under friendly fire pursuant to Title 10 U.S. Code (USC), Section 1129 (Purple Heart: members killed or wounded in action by friendly fire)  
* when he left Vietnam, his local command informed him they had lost his medical records and he also has post-traumatic stress disorder (PTSD)
* he also tried to find reports or other records to support his claim, but Company C, 1st Battalion, 506th Infantry, 101st Airborne records were only available from 1971 onward  
* his original injury was service-connected due to having shrapnel in his right hand for which he received treatment later on  

3.  He provides:

* PH criteria from a private website
* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) 
* Chronological Record of Medical Care
* Veterans Administration (VA) letter dated 1 March 1974

* Disabled American Veterans letter with attachments dated 
3 November 2000
* Dallas Facility Outpatient Routing slip

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.  On 11 September 1969, the applicant enlisted in the Regular Army (RA).  After completing initial entry training, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  

3.  His DA Form 20 (Enlisted Qualification Record) shows in:

* item 38 (Record of Assignments) – he was assigned duty in Vietnam with Company C, 1st Battalion, 506th Infantry and to Company A, 426th Supply and Service Battalion, 101st Airborne Division from 31 January 1970 to 
5 January 1971
* item 40 (Wounds) – no entries 
* item 41 (Awards and Decorations) – no entry for the PH

4.  On 13 May 1970, he was honorably discharged from active duty.  He immediately reenlisted on 14 May 1970.  He was honorably discharged on 
11 May 1973 and was transferred to the U.S. Army Reserve.  

5.  On 25 February 1975, he again enlisted in the RA and was honorably discharged on 18 October 1985.

6.  His DD Forms 214 do not show he was awarded the PH.

7.  His Official Military Personnel File does not contain any documentation indicating he was wounded during his military service as a result of friendly-fire or hostile action while he was in Vietnam.
8.  His complete service medical records are not available for review.  However, the applicant medical records showing, in part, that an examination on 
24 June 1970 revealed that he had a healed shrapnel wound to his upper arm.  However, it does not state how he incurred the injury.  He also provides a medical documentation from the Medical and Surgical Clinic of Irving dated 
3 March 2000, in which the applicant was seen by a medical facility for an evaluation after having been in a motor vehicle accident the day before.  His major complaint was that his right hand, the left side of his neck, his chest and the right upper portion of his abdomen were hurt and a bit sore.  He also stated that he had a shrapnel wound from Vietnam and that was also hurting.   His x-ray revealed no fracture to his hand, but that there was, in fact, a shrapnel particle in his hand, a 3mm metallic foreign body. 

9.  His name is not listed as a casualty on the Vietnam casualty listing compiled by The Adjutant General's Office, Casualty Division.

10.  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 PH pertaining to the applicant.

11.  He also provides a letter from the VA dated 1 March 1974, showing that he was entitled to VA compensation.

12.   On 20 October 2011, the applicant provides a letter from a VA facility in Dallas, TX which shows he has a VA disability rating at 90% for superficial scars, a muscle injury, PTSD, tendon inflammation, benign growth of the bones, and a flat foot condition.

13.  Army Regulation 600-8-22 (Military Awards) states the PH 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 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.  

14.  Army Regulation 600-8-22 further provides for award of the PH to individuals wounded or killed as a result of friendly fire in the “heat of battle” as long as the “friendly” projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.


15.  Included as part of the Department of Defense Appropriations Act for fiscal year 1994 was an amendment to the rules governing award of the PH.  While the original rules established that the PH would be awarded to individuals killed or wounded as a result of hostile action the amendment enabled the Secretaries of each department to award the PH to members of the armed forces who were killed or wounded in action by weapons fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States.  This ruling granted the service Secretaries the authority to award the PH to individuals directly engaged in armed conflict who were killed or wounded as a result of “friendly fire.”

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not show the applicant was wounded during his service in Vietnam and he has not provided documentary evidence substantiating his claim that he was wounded as a result of friendly fire or hostile fire.  

2.  Until 1994, there was no statutory or regulatory basis for awarding the PH to Soldiers killed or wounded as a result of friendly fire.  Although it would now be possible to award the PH to the applicant for a wound he received as a result of friendly fire, the basic criteria for the award have not changed.  There must still be substantiating evidence verifying that he received a wound under conditions meeting the friendly fire criteria, that the wound required treatment by medical personnel, and that the medical treatment was made a matter of official record.  

3.  Unfortunately, in this case the evidentiary requirements for award of the PH have not been met.  Although the applicant provides a medical document dated 24 June 1970 which states he has a healed shrapnel wound, it does not state how he received the injury or the conditions in which he was wounded.  Furthermore, a VA examination conducted decades after his service in Vietnam and his own statements are an insufficient basis upon which to award him the PH.

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)                                         AR20130022036



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ABCMR Record of Proceedings (cont)                                         AR20140014459



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