IN THE CASE OF:	 

		BOARD DATE:	  21 April 2015

		DOCKET NUMBER:  AR20140014594


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was awarded the Purple Heart.

2.  The applicant states he was wounded by friendly fire on 10 July 1969 at Landing Zone (LZ) Bayonet, near Chu Lai in the Republic of Vietnam.  While in training, they came under mortar fire, which spooked the instructor who accidently discharged a claymore mine.  The regulation that governs the Purple Heart changed to allow the award to Soldiers wounded by friendly fire.

3.  The applicant provides a copy of his DD Form 214, a Standard Form (SF) 502 (Clinical Record – Narrative Summary), and a DA Form 8-275-3 (Clinical Record Cover Sheet). 

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 15 February 1968.  He completed his initial entry training and was awarded military occupational specialty (MOS) 76A (Supply Clerk).  Later, upon his promotion to specialist four/E-4, he was awarded MOS 76V (Equipment Storage Specialist). 

3.  Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from on or about 28 June 1969 through on or about 7 February 1970.

4.  His records contain an SF 502, dated 10 July 1969, which shows he was treated for minor fragment wounds of his left arm and leg as a result of a combat center accident. 

5. His record also contains a DA Form 8-275-3, dated 10 July 1969, which shows he was treated for fragment wounds of his left upper arm and left knee, the result of a claymore mine that exploded in class.

6.  Neither item 40 (Wounds) nor item 41 (Awards and Decorations) of his DA Form 20 indicate he was either wounded in combat or awarded the Purple Heart.

7.  He was honorably released from active duty and transferred to the U.S. Army Reserve on 8 February 1970.  His DD Form 214 does not show he was awarded the Purple Heart.

8.  His available record is void of orders that show he was previously awarded the Purple Heart and there are no documents indicating he was ever recommended for or awarded the Purple Heart by proper authority.  Further, his name is not listed on the Vietnam casualty roster.  His medical records are not available for review.

9.  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 U.S. Army Human Resources Command, failed to reveal any orders that show he was awarded the Purple Heart.

10.  His record contains a letter from the National Personnel Records Center (NPRC), St. Louis, Missouri, dated 30 January 2002, which was sent to him in response to an inquiry he made regarding his entitlement to the Purple Heart.  In this letter, an NPRC Archives Technician responded that they were unable to verify his entitlement to the Purple Heart; no records had been found to show he received medical treatment for wounds received in action.  The NPRC acknowledged the presence of documents that showed he was injured when a mine exploded in a classroom; they informed him that the Purple Heart cannot be awarded for accidental injuries.

11.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is authorized to members who are wounded in action.  It defines a wound as an injury to any part of the body from an outside force or enemy agent sustained in action.  It also stipulates that the wound for which a Purple Heart is being awarded must have required treatment by medical personnel and the records of such medical treatment must have been made a matter of official record.  It further states that injuries or wounds resulting from accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action, clearly do not qualify for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his DD Form 214 to show he was awarded the Purple Heart was carefully considered.

2.  The evidence of record shows the applicant was injured when a claymore mine exploded during classroom instructions on 10 July 1969.  By regulation, accidents, to include explosive and other accidental wounding not related to or caused by enemy action, except when in the heat of battle and not involving gross negligence, are examples of injuries or wounds for which award of the Purple Heart is clearly not justified.

3.  He contends his training class came under mortar fire and as a result, his instructor was spooked and accidentally discharged the claymore mine.  The evidence of record established the accidental discharge of the claymore mine in a classroom setting; however, it does not corroborate a mortar attack that preceded the accidental discharge.  

4.  Notwithstanding the applicant's sincerity, regrettably, absent evidence that conclusively shows his wounds or injuries resulting from hostile action, that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is an insufficient basis for awarding him the Purple Heart or correcting his record to show he was awarded the Purple Heart.




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)                                         AR20090012380



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ABCMR Record of Proceedings (cont)                                         AR20140014594



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