IN THE CASE OF:  	  

		BOARD DATE:  12 May 2015	  

		DOCKET NUMBER:  AR20140016275 


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 through a service officer with the Vietnam Veterans of America that he sustained a fragment wound while destroying enemy munitions in Vietnam on 4 April 1970.  Two men died in the explosion, "Sxxxx" (actual name unknown) and Pxxx E. Txxxxx.  This incident occurred in the war zone, out in the field, because the enemy had tampered with the "delay" on the grenade confiscated back from the enemy earlier that day.  The medic who would have completed the paperwork was also injured and was medically evacuated at the same time.  He was an infantryman in Vietnam from 1969 to 1970 and he deserves this award.

3.  The applicant provides copies of the following:

* two Standard Forms (SF) 88 (Report of Medical Examination)
* two SFs 89 (Report of Medical History)
* medical history
* International Certificates of Vaccination
* five SFs 600 (Health Record – Chronological Record of Medical Care)
* SF 539 (Clinical Record – Abbreviated Clinical Record)
* dental record
* letter of commendation
* SF 602 (Health Record – Dental Clinic)


* DA Form 3082-R (Statement of Medical Condition)
* 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 was inducted into the Army of the United States on 3 June 1969.  He was awarded military occupational specialty 11B (light weapons infantryman).  He served in Vietnam from 19 November 1969 through 3 November 1970.

3.  He provided copies of the following:

   a.  An SF 88 which shows he underwent a medical examination on 3 June 1969 for the purpose of his induction and he was found qualified.

   b.  An SF 89 completed at the time of his medical examination on 3 June 1969.  He indicated on the form he was in good health.  

   c.  A Medical History, dated 6 June 1969, wherein he indicated he had no medical conditions. 

   d.  An SF 600 which shows he received treatment for a cold/cough on 7 June 1969.

   e.  Four SFs 600 which show he sustained fragment wounds to his left ankle and received medical treatment between 4 April and 26 May 1970.  There is no indication on these medical treatment forms to show the wounds were caused by enemy, "friendly fire," or an accidental explosion.

   f.  An SF 539, dated 9 April 1970, which shows he suffered multiple superficial fragment wounds to his left ankle following a grenade explosion and received treatment.

   g.  A letter of commendation, dated 24 February 1971, wherein his unit was commended for their display of professional competence, total dedication, tactical aggressiveness, and absolute courage.

   h.  An SF 602 which shows he was seen in the Dental Clinic.

   i.  An SF 88 which shows he underwent a medical examination on 24 February 1971 for the purpose of his expiration of term of service.  He was found qualified for separation.

   j.  An SF 89 completed at the time of his medical examination on 24 February 1971 wherein he indicated he was in good health.  

   k.  A DA Form 3082-R, dated 19 March 1971, wherein he stated that there was no change in his medical condition.

4.  He was honorably released from active duty on 19 March 1971 and was transferred to the U.S. Army Reserve Control Group.  He was credited with completing 1 year, 9 months, and 17 days of active service.  His DD Form 214 lists the:

* National Defense Service Medal
* Vietnam Service Medal with two bronze service stars
* Republic of Vietnam Campaign Medal with Device 1960
* Combat Infantryman Badge (1st Award)
* Bronze Star Medal
* Army Commendation Medal
* two overseas service bars
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)

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

* 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

6.  He also provided a letter addressed to the Department of Veterans Affairs, dated 26 July 2014, wherein he requested correction of his military record by awarding him the Purple Heart.  He stated that around 3 April 1970, during one of his deployments to Vietnam, his patrol had confiscated a cache of grenades by killing the enemy and taking repossession of American made grenades.  The squad leader, Pxxx Txxxx, was pulling the pin from a grenade and it exploded because the enemy had removed the "delay" mechanism.  The squad leader died two days later.  Another Soldier died immediately after some shrapnel hit him the neck, severing his jugular vein.  A piece of the shrapnel hit his ankle/foot area as he was walking by (emphasis added).  His injury was bad enough that he was medically evacuated along with their unit medic who was injured as well.  He was then transferred to Chu Lai where he stayed for 1 week.  He was returned to the field with the same medic; however, he had no further communication with the medic regarding those incidents or to complete medical reports.

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

8.  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.

9.  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.  

   c.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:  injury caused by enemy bullet, shrapnel, or other projectile created by enemy action or caused by enemy placed mine or trap.

   d.  An example of injuries or wounds which clearly did not justify award of the Purple Heart are accidents, to include explosive, aircraft, vehicular, and other accidental wounding (emphasis added) not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's medical records show he sustained superficial fragment wounds to his left ankle following a grenade explosion in Vietnam and received medical treatment between April and May 1970.  Item 40 of his DA Form 20 does not show he was wounded in action in Vietnam.  Item 41 of this form does not list the Purple Heart and his name is also not on the Vietnam casualty roster.  By his own admission, a piece of the shrapnel hit his ankle/foot area as he was walking by after his squad leader pulled the pin from an American grenade and it exploded (emphasis added).  In his statement, he said that his unit had recovered the American grenades from enemy forces who he alleges had removed the "delay" mechanism thus causing instability in the handling of the grenades.  This instability potentially led to the early denotation of the grenade that caused his injury. 

2.  There is no available evidence of record and the applicant did not provide sufficient evidence showing he sustained a wound/injury while directly engaged in armed conflict with the enemy.  The applicant contends his wounds were the result of an explosion caused by an American grenade recovered from enemy forces who had tampered with the "delay" mechanism.  As the squad leader was in the process of destroying the now potentially faulty grenades, the resulting explosion due to the instability of the grenade could be construed as an accident. Thus the applicant's wounds could be considered as caused by an accidental explosion precipitated by enemy action.  However, the applicant has not provided supporting evidence to support his contentions such as eyewitness statements, staff duty journals, or unit reports.  

3.  Notwithstanding his contentions and his sincerity, in the absence of evidence conclusively showing his injury resulted from enemy and was not accidental, there is insufficient evidence upon which to base award of the Purple Heart.  Therefore, he is not entitled to award of the Purple Heart and its addition to his DD Form 214.

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)                                         AR20140016275



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ABCMR Record of Proceedings (cont)                                         AR20140016275



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