BOARD DATE:	  23 April 2015

		DOCKET NUMBER:  AR20140015761 


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.

2.  The applicant states he was injured while serving in Vietnam.  After his reading of the regulation concerning the rules of engagement, he qualifies for this award.  

3.  The applicant provides copies of a telegram to a Member of Congress and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant's military records show he was inducted into the Army of the United States (AUS) on 13 February 1969.  He was awarded military occupational specialty 62F (crane shovel operator).  He served in Vietnam from 17 July through 4 October 1969.  He was assigned to the U.S. Army Depot.

3.  His records contain a Standard Form 88 (Report of Medical Examination) which shows he underwent an examination on 14 December 1970 for the purpose of his expiration of term of service.  Page 2 of the form does not indicate he was wounded during his period of service.

4.  He was honorably released from active duty on 12 February 1971 and was transferred to the U.S. Army Reserve (USAR) Control Group.  He was credited with completing 2 years of active service.  His DD Form 214 lists the National Defense Service Medal and Vietnam Service Medal.

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

* Item 38 (Record of Assignments) - he was in a patient status from 12 September 1969 through 20 February 1970
* Item 40 (Wounds) - no entry to show he was wounded in action while serving in Vietnam  
* Item 41 (Awards and Decorations) all the awards listed on his DD Form 214 and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16) and Marksman Marksmanship Qualification Badge with Rifle Bar

6.  His records also contain the following:

   a.  A Department of Veterans Affairs (VA) Form 21-6782 (Original Disability Compensation) which shows the VA awarded a combined 50 percent service-connected rating for a gunshot wound to his abdomen and right nephrectomy (surgical procedure to remove all or part of a kidney) effective 13 February 1971.

   b.  A Reserve status memorandum, dated 18 January 1972, wherein he was advised that he was medically qualified for retention in the USAR and as a result he would remain a member of the Ready Reserve.  Although he had been found medically qualified, his duty assignment would be limited to those his medical condition would permit.

   c.  An AGUZ Form 368 (Report of Morning Report Search), dated 19 June 1973, shows he was on convalescent leave from 22 November 1969 through 17 January 1970.
7.  He provided a copy of a telegram, dated 5 March 1970, wherein the Commander, U.S. Army Armor Center, Fort Knox, KY, advised a Member of Congress of the following:

   a.  A review of the applicant's medical records revealed he sustained a gunshot wound to the abdomen (involving injuries to his right kidney and liver) while serving in Vietnam on 3 September 1969.  The applicant was initially admitted to the 17th Field Hospital, but he was immediately transferred to the 67th Evacuation Hospital where he underwent surgery for re-section of the right anterior segment of his liver and right kidney.  On 9 September 1969, he was transferred to Ireland Army Hospital (Fort Knox, KY).

   b.  Further surgery was performed at Ireland Army Hospital and he did well post-operatively and was assigned to the medical holding company.  At that time, a temporary profile was issued.  He was considered medically qualified for continued military service; however, he was given a permanent profile to preclude further duty in a combat zone.  He was reassigned to the 503rd Combat Support Company, Fort Bragg, NC.

8.  His name is not shown on the Vietnam casualty roster.

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 Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any orders for award of the Purple Heart pertaining to the applicant.

10.  Army Regulation 600-8-22 (Military Award) states:

   a.  The Purple Heart is awarded for a wound sustained as a result of enemy 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.

   b.  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 proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award of the Purple Heart.  

   c.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:
		(1)  Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action.

		(2)  Injury caused by enemy placed mine or trap.

		(3)  Injury caused by enemy released chemical, biological, or nuclear agent.

		(4)  Injury caused by vehicle or aircraft accident resulting from enemy fire.

		(5)  Concussion injuries caused as a result of enemy generated explosions.

   d.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows:

		(1)  Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

		(2)  Self-inflicted wounds, except when in the heat of battle and not involving gross negligence.

DISCUSSION AND CONCLUSIONS:

1.  There is no available evidence of record and the applicant did not provide sufficient evidence showing he sustained a wound/injury as a result of enemy action (emphasis added) for award of the Purple Heart during his period of service in Vietnam.  

2.  Notwithstanding the telegram submitted by the applicant and the documentation contained in his records, there is insufficient evidence clearly showing his gunshot wound was the result of hostile action during his period of service in Vietnam.  Item 40 of his DA Form 20 does not show he was wounded. Item 41 of this form does not list the Purple Heart.  His name is also not on the Vietnam casualty roster.  There are no orders in ADCARS awarding or authorizing him the Purple Heart.

3.  By regulation, to be awarded the Purple Heart it is necessary to establish that a Soldier was wounded or injured in action.  There must be evidence confirming the wound for which the award is being made was received as a direct result of, or was caused by enemy action (emphasis added), that the wound was treated by medical personnel, and a record of this treatment must have been made a matter of official record.  
4.  Notwithstanding his contentions and his sincerity, regretfully there is insufficient evidence upon which to base award of the Purple Heart because it is not known how he sustained the gunshot wound to his stomach.  

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)                                         AR20140015761



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ABCMR Record of Proceedings (cont)                                         AR20140015761



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