IN THE CASE OF:	  

		BOARD DATE:	  2 June 2015

		DOCKET NUMBER:  AR20140017773 


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 that despite corroborating evidence he was never awarded the Purple Heart.  He is enclosing new evidence showing that on 13 April 1970 [should be 14 April] the Army acknowledged he had in fact been wounded.  Additionally, he is being compensated by the Department of Veterans Affairs (VA) for shell fragment wounds.  He was medically evacuated to a field hospital where he was treated; then to Cam Rahn Bay, Vietnam, for treatment; and then to Japan.  Since he applied for disability following his release from active duty the VA Regional Office in Cleveland, OH, has his service medical records.  His Veterans Service Officer advised him that given the current backlog it could take one year to obtain these records.  He believes the evidence he has submitted should be adequate to approve his request.

3.  The applicant provides copies of the following:

* telegram to a Member of Congress
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* VA Rating Decision
* letter from the VA
* Purple Heart eligibility criteria information



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 4 March 1969.  He was awarded military occupational specialty 91B (medical specialist).  He served in Vietnam from 6 October 1969 through 23 April 1970.

3.  He provided a copy of a telegram, dated 14 April 1970, wherein a Member of Congress was advised of the following:

   a.  The applicant was injured in the course of his duties on 5 February 1970.  The applicant was proceeding along a trail with his platoon when friendly mortars fired into an area to insure clearance of enemy personnel for their night encampment.  That action had been verified by an investigation since there was no known or suspected enemy in the area.  The incident was classified as non-hostile (emphasis added).

   b.  Personnel wounded as a result of non-hostile action who are not placed on hospital's very seriously injured lists are not reported as casualties in accordance with current regulations.  Had the applicant been incapable of communicating with his next of kin, he would have been placed on a special category list and reported.
   
   c.  The form completed by the applicant indicated that he desired to have his next of kin notified if lightly injured or wounded as a result of hostile action only.

4.  He was honorably released from active duty on 3 March 1971 and was transferred to the U.S. Army Reserve Control Group.  He was credited with completing 2 years of total active service.  His DD Form 214 lists the:

* National Defense Service Medal
* Vietnam Service Medal
* Combat Medical Badge
* Expert Marksmanship Qualification Badge with Rifle Bar

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

* Item 40 (Wounds) – he sustained shrapnel wounds in both thighs, left forearm, left wrist, and left chest on 5 February 1970
* Item 41 (Awards and Decorations) lists the awards listed on his DD Form 214 

6.  He also provided copies of the following:

   a.  A VA Rating Decision, dated 18 November 2011, which shows he was awarded continued service-connection compensation for residuals of shell fragment wounds for the right and left thighs; left chest, forearm, wrist, and shoulder; and pericardial adhesions with retained foreign body.

   b.  A letter, dated 1 December 2011, wherein the VA advised him of an increased compensation rating for diabetes mellitus and peripheral neuropathy of the left and right lower extremities.

   c.  Purple Heart eligibility criteria information.

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, 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:

		(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.

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

   e.  The Purple Heart may be awarded 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.
   
DISCUSSION AND CONCLUSIONS:

1.  The available evidence clearly shows that on 5 February 1970, while serving in Vietnam, the applicant sustained fragment wounds when friendly mortars were fired in the area to ensure clearance of enemy personnel before his platoon made their night encampment.  An investigation verified that there was no known or suspected enemy in the area and the incident was classified as non-hostile.  There is no available evidence and he did not provide sufficient evidence showing he was wounded as a result of enemy action or by "friendly fire" in the "heat of battle."  

2.  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 or 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.  Unfortunately, considering that there was no known or suspected enemy in the area, it appears his injuries were accidental.  

3.  Notwithstanding his contentions and his sincerity, in this case there is insufficient evidence upon which to base award of the Purple Heart.  Therefore, he is not entitled to 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)                                         AR20140017773





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ABCMR Record of Proceedings (cont)                                         AR20140017773



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