IN THE CASE OF:	 

		BOARD DATE:	  9 June 2015

		DOCKET NUMBER:  AR20140017053 


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 never received the Purple Heart for the wounds he received on 10 June 1969 during a mortar attack in the Republic of Vietnam.  The mortar attack wounded 13 Soldiers, including him, and all were medically evacuated to Cam Ranh Bay.  He was splinted and sent to the hospital at Cam Ranh Bay for two weeks before being returned to his unit.

3.  The applicant provides:

* Temporary Form 600 (Chronological Record of Medical Care)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a letter from the U.S. Army Human Resources Command (HRC) written to his Member of Congress, dated 30 August 2009
* a letter from his Member of Congress, dated 27 October 2009
* a letter from HRC to his Member of Congress, dated 16 February 2010
* a letter from his Member of Congress, dated 8 March 2010
* two letters, dated 5 April 2010
* a letter from his Member of Congress, dated 24 March 2010

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 13 May 1968.  He held military occupational specialty 11B (Light Weapons Infantryman) and attained the rank/grade of specialist four (SP4)/E-4.

3.  He was honorably released from active duty on 12 May 1970.  His DD Form 214 and subsequently issued DD Form 215 (Correction to DD Form 214) do not show he was awarded the Purple Heart.

4.  His record contains a DA Form 20 (Enlisted Qualification Record) that shows in:

   a.  Item 31 (Foreign Service) he served in the Republic of Vietnam from 
8 October 1968 to 2 October 1969.  

	b.  Item 38 (Record of Assignment) he was assigned to Company D, 2nd Battalion, 506th Airborne Infantry Regiment, from 23 October 1968 to 2 October 1969.  However, item 38 provides no indication that he was medically evacuated or that he was placed in a patient status at a hospital.  

	c.  Item 40 (Wounds) he fractured his left wrist on 10 July 1969.

	d.  Item 41 (Awards and Decoration) no awards of the Purple Heart.  

5.  He provided a Temporary Form 600 that contains two entries, dated 
10 June 1969.  

	a.  The first entry states he was sent in from the field with an injury to his left wrist.  There was some swelling and tenderness.  X-rays were to be ordered and evaluated.  

	b.  The second entry states that there was no fracture seen in the X-rays; but he did have a severe contusion on his left wrist.  He would be placed in a splint and evaluated.
	c.  This record does not indicate the contusion on his wrist was incurred as a direct result of hostile enemy action nor was it classified as a combat-related wound.

6.  His official records do not contain a Department of the Army message or a Western Union telegram regarding any injury or wound and his name does not appear on the Vietnam Casualty Roster.  

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 and maintained by HRC – failed to reveal orders awarding him the Purple Heart.

8.  He provided various letters and correspondence between his Member of Congress and HRC.  These letters show, in effect, that HRC granted him several awards and he was subsequently issued a DD Form 215 to record these additional awards.  However, after a through records review, they denied his request for award of the Purple Heart and so informed his Member of Congress.  

9.  The applicant provided two letters, dated 5 April 2010, which give the strong appearance of having been written and signed by the same individual.  The handwriting on the both letters appear to be identical.  However, based on the signatures, one of the letters may have been signed by someone other than the letters author.  

	a.  The first letter states:

		(1)  "I served in Vietnam from November, 1968 through November, 1969, as a private in the United States Army; 101 Airborne, 2/506, D Company.  While serving with the 101st in the Ashau Valley on June 10, 1969 SGT Lxxxx Rxxxx and several others were wounded by RPG fire and was medivaced out.  Later the same day [the applicant] was injured and medivaced out as a result of the same fire fight.  The above is true and correct to the best of my knowledge, information, and belief."

		(2)  There is a signature and service number listed at the bottom of this letter.  This signature gives the appearance of having been signed by someone other than the letter's author.

	b.  The second letter states:

		(1)  "I served in Vietnam as sergeant of D Company, 101 Airborne 2/506.  [The applicant] served in Company D.  On June 10, 1969, while in the Ashau Valley, Vietnam, I was wounded by RPG fire.  To the best of my information, knowledge, and belief [the applicant] was injured in the same firefight the same day."

		(2)  There is a signature and service number listed at the bottom of this letter.  This signature gives the strong appearance of having been signed by the letter's author.

10.  The American Academy of Orthopedic Surgeons states, in effect, that the medical term contusion is another word for a bruise.  Contusions occur when a direct blow or repeated blows from a blunt object strike part of the body, crushing underlying muscle fibers and connective tissue without breaking the skin.  A contusion can result from falling or jamming the body against a hard surface.  Contusions cause swelling and pain, and limit joint range of motion near the injury. Torn blood vessels may cause bluish discoloration.  The injured muscle may feel weak and stiff.  Sometimes a pool of blood collects within damaged tissue, forming a lump over the injury (hematoma).

11.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded to service members who have been wounded or killed, or who have died or may hereafter die after being wounded - in any action against an enemy of the United States; in any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged; while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party; as the result of an act of any such enemy of opposing Armed Forces; as the result of an act of any hostile foreign force; and members killed or wounded in action by friendly fire. 

	a.  A wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions listed above.  A physical lesion is not required, however, the wound for which the award is made must have required treatment by medical personnel and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.

	b.  When contemplating an award of this decoration, the key issue is 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
* Injury caused by enemy placed mine or trap
* Injury caused by enemy released chemical, biological, or nuclear agent
* Injury caused by vehicle or aircraft accident resulting from enemy fire
* 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:

* Frostbite or trench foot injuries
* Heat stroke
* Food poisoning not caused by enemy agents
* Chemical, biological, or nuclear agents not released by the enemy
* Battle fatigue
* Disease not directly caused by enemy agents
* Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action
* Self-inflicted wounds, except when in the heat of battle and not involving gross negligence
* Post traumatic stress disorders
* Jump injuries not caused by enemy action

	e.  It is not intended that such a strict interpretation of the requirement for the wound or injury to be caused by direct result of hostile action be taken that it would preclude the award being made to deserving personnel.  Commanders must also take into consideration the circumstances surrounding an injury, even if it appears to meet the criteria.  Note the following examples:

		(1)  In a case such as an individual injured while making a parachute landing from an aircraft that had been brought down by enemy fire; or, an individual injured as a result of a vehicle accident caused by enemy fire, the decision will be made in favor of the individual and the award will be made.

		(2)  Individuals injured as a result of their own negligence; for example, driving or walking through an unauthorized area known to have been mined or placed off limits or searching for or picking up unexploded munitions as war souvenirs, will not be awarded the Purple Heart as they clearly were not injured as a result of enemy action, but rather by their own negligence.

 	f.  Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire (as defined in paragraph b(8) above) the wound or injury must have required treatment by medical officials; and the records of medical treatment must have been made a matter of official Army records.

DISCUSSION AND CONCLUSIONS:

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

2.  Item 40 of the applicant's DA Form 20 shows he fractured his left wrist on     10 June 1969; however, the medical documentation he provided contradicts the entry in item 40 of his DA Form 20.  His medical records show that after reviewing his X-rays, it was determined that he had not fractured his wrist.  However, he did suffer from a severe contusion, or bruise, to the left wrist and his wrist was splinted, no doubt, to limit movement in that area.  

3.  He indicates his injury occurred on a day that his unit came under attack from RPG fire.  However, his injury was not listed as a battle injury in his record; in fact, his records do not indicate the cause of his injury.  His name was not listed on the Vietnam casualty roster.

4.  The governing Army regulation requires that a Purple Heart recipient be wounded in combat to such a degree that requires treatment and that treatment must be made a matter of record.

5.  In the applicant's case, the evidence of record is contradictory and unclear.    It is unknown whether the causal factor of his injury was an accident, such as tripping or banging his wrist on equipment, or whether it resulted from hostile enemy action.  As such, the available evidence is insufficient to show his wound(s) resulted from enemy action, and therefore, the available evidence is insufficient to grant the requested relief.









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)                                         AR20140017053



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ABCMR Record of Proceedings (cont)                                         AR20140017053



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