IN THE CASE OF:	  

		BOARD DATE:	  21 July 2015

		DOCKET NUMBER:  AR20140018191 


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, in effect, 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 does not know why he never received his medal, but he was blown up in Vietnam and would like to have his Purple Heart because he has waited long enough.

3.  The applicant provides no additional evidence in support of his request.

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 6 August 1965, held military occupational specialty 56D (Subsistance Storage Specialist), and attained the rank/grade of specialist four (SP4)/E-4.

3.  His DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from 10 January 1966 to 3 June 1966.  

4.  Item 40 (Wounds) of his DA Form 20 does not contain any entries.

5.  His record contains a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 28 May 1966, which shows he was admitted to the 12th U.S. Air Force Hospital, Vietnam on 21 May 1966, where he was treated for multiple shrapnel wounds resulting from a high explosion.  

6.  His records contain five DA Forms 19-24 (Statement), dated 28 May 1966, that were collected by First Lieutenant (1LT) JCA, the investigating officer appointed to conduct a line of duty (LOD) investigation into the deaths of two men and the injury of three men.  

	a.  Private First Class (PFC) GPC, the applicant, and SP4 DPC statements show that they were security guards at the rifle range located in the vicinity of 
Ba Ngoi, Vietnam on 21 May 1966.  They arrived at the range early the morning of 21 May 1966 and had been assigned to their post by Staff Sergeant (SSG) CIS.  SP4 DPC and PFC JPD were walking around the area and found some grenades and a mortar.  PFC JPD brought the mortar back to their security position.  PFC GPC noticed that PFC JPD had a mortar in his hands and told him that he should leave the mortar alone; however, PFC JPD ignored him.  PFC JPD brought the mortar shell over to their position and started hitting the mortar on the outer shell.  The mortar exploded at approximately 1500 hours.  The explosion killed SP4 PDW and PFC JPD and injured SP4 DPC, PFC GPC, and the applicant.

	b.  SSG CIS stated he was one of the Noncommissioned Officers in Charge (NCOIC) at the rifle range located in the vicinity of Ba Ngoi, Vietnam on 21 May 1966.  He arrived at the range around 0630 hours on the morning of 21 May 1966 to post the security guards.  He briefed them about the area they were to secure and left them instructions about what to do if they were attacked.  He further explained to them that the area they were in was an impact zone and that there might be a considerable amount of dud ammunition in the area.  He told them not to pick up or touch any of the bombs if they discovered them.  Later, at approximately 1500 hours, he heard an explosion that sounded like a 60 millimeter mortar.  He rushed to the scene of the explosion.  SP4 PDW and PFC JPD had been killed.  SP4 DPC, the applicant, and PFC GPC had been injured.

	c.  Sergeant First Class (SFC) WBA stated he was one of the NCOICs at the rifle range located in the vicinity of Ba Ngoi, Vietnam on 21 May 1966.  PFC JPD came up to him at lunch that day and showed him what looked like an empty canister to an incendiary bomb.  SFC WBA took the empty canister away from PFC JPD and told PFC JPD to leave the blank rounds and dud bombs that were in the area alone.  Later, at around 1500 hours, he heard an explosion that sounded like a mortar.  It had come from the location where the security guards were posted.  SFC WBA drove a 3/4 ton truck down to the location of the explosion and helped to evacuate the men.  SP4 PDW and PFC JPD had been killed by the explosion.  SP4 DPC, the applicant, and PFC GPC had been seriously injured.

7.  His record contains a Western Union Telegram, dated 15 June 1966, which informed his mother that he sustained metal fragment wounds to both legs and his abdomen in Vietnam on 21 May 1966 when a rocket misfired.  

8.  His record contains a DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status), dated 1July 1966, which shows the investigation determined the applicant's multiple shrapnel wounds were the result of the accidental detonation of a 60 millimeter mortar and found his injuries to be in the line of duty.

9.  His record does not contain orders awarding him the Purple Heart and 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 the U.S. Army Human Resources Command (HRC) – failed to reveal orders awarding him the Purple Heart.

10.  A review of The Adjutant General's Office, Casualty Division's Vietnam casualty roster does not show the applicant's name as a casualty at any time.

11.  He was honorably released from active duty on 4 August 1967.  His DD Form 214 does not show he was awarded the Purple Heart. 

12.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile 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.  This regulation also provides for award of the Purple Heart 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 evidence or record shows the applicant sustained metal fragment/ shrapnel wounds to both his legs and abdomen as a result of the accidental detonation of a 60 millimeter mortar.  This detonation of the mortar that injured him occurred because another Soldier was mishandling the mortar shell while he and the applicant were on guard duty.

2.  There is no evidence of record and the applicant has not provided evidence to show that his wounds were the result of hostile action or that he was wounded as a result of friendly fire in the heat of battle and that the mortar that injured him was released with the full intent of inflicting damage or destroying enemy troops or equipment.  As such, his injuries do not meet the criteria for award of the Purple Heart

3.  Based on the foregoing, there is insufficient evidence 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)                                         AR20140018191



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ABCMR Record of Proceedings (cont)                                         AR20140018191



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