IN THE CASE OF:  	  

		BOARD DATE:  23 July 2015	  

		DOCKET NUMBER:  AR20140019343 


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 correction of his records to show award of the Purple Heart.

2.  The applicant states that he served in the Republic of Vietnam (RVN) and was assigned to A Battery, 1st Battalion, 44th Field Artillery (Self-Propelled) in support of the 3rd Marine Division.

   a.  He states that his unit was on a search and destroy mission in the Phu Bai region of Vietnam, on 20 April 1967, when three Soldiers in the unit were killed in action by the North Vietnamese Army.  He was also wounded in the ambush when his gun turret was struck by a rocket propelled grenade (RPG) round, which caused shrapnel and burn wounds to his legs.  A Navy Corpsman (Private First Class W----) treated his wounds in the field and then returned to his base.  Later, First Sergeant (1SG) N---- informed the applicant that the Navy Corpsman had died at the hospital.

   b.  Following the incident, he was in shell shock and not concerned about awards.  However, Lieutenant (LT) Fred J---, the officer in charge of the battery, recommended him for the Bronze Star Medal.

   c.  He states that he never felt like a hero.  He always believed others had it rougher than him and that the true heroes are those who lost their lives during the Vietnam War.  After attending an Army reunion two years ago he was convinced to apply for the Purple Heart to "somehow honor the true heroes."

3.  The applicant provides copies of a self-authored statement (summarized above), three supporting statements, and two letters.

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 on 26 July 1965.  He was awarded military occupational specialty 13F (Automatic Weapons Crewman).

3.  His DA Form 20 (Enlisted Qualification Record) shows in –

* item 31 (Foreign Service):  Vietnam from 20 October 1966 through 
18 July 1967
* item 38 (Record of Assignments):  A Battery, 1st Battalion, 44th Artillery, from 20 October 1966 through 17 July 1967
* item 40 (Wounds) is blank (no entries)
* item 41 (Awards and Decorations) does not list the Purple Heart

4.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was honorably released from active duty on 
20 July 1967.  He had completed 1 year, 11 months, and 25 days of total active duty service during this period that included 8 months and 29 days of foreign service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) does not list the Purple Heart.

5.  A review of the applicant's military personnel records failed to reveal any orders or other evidence that shows he was awarded the Purple Heart.  This review also failed to reveal evidence that he was recommended for or awarded the Bronze Star Medal.

6.  A review of The Adjutant General's Office, Casualty Division's Vietnam casualty roster failed to reveal the applicant's name.
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 maintained by the Awards and Decorations Branch of the U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart or the Bronze Star Medal pertaining to the applicant.

8.  In support of his application the applicant provides the following documents.

   a.  A Department of Veterans Affairs, Nashville Vet Center, Nashville, TN, letter, dated 16 June 2014.  Daniel J. E----, Clinical Coordinator/Readjustment Counselor, wrote to Mr. M---- stating, "I want to personally thank you for signing off on a letter to help [the applicant] receive his much deserved Purple Heart."  It also shows, "Please sign the enclosed letter and return it to [the applicant] in the self-addressed envelope."  The bottom of the letter shows a handwritten note from an unidentified writer, dated 20 June 2014.

   b.  A statement by Major Lawrence E. M----, U.S. Army (Retired), dated 
20 June 2014.  He states, in pertinent part, "I served as his battery commander. [The applicant's] unit was ambushed on 20 April 1967 and he received shrapnel injuries and burns on his legs when an enemy RPG hit the rear of the gun turret of the track.  I also recall that his uniform was charred from the burns.  The RPG went all the way through the turret and four of the crewmen were killed.  [The applicant] was treated by a Navy Corpsman and refused medevac [medical evacuation].  He was eligible to receive a Purple Heart, but refused any medals."

   c.  A witness statement by 1SG Howard W. S----, U.S. Army (Retired), undated.  (It shows the applicant contacted him and asked him if he remembered anything about the ambush of his M42, twin forty tracks "Duster" while on a search and destroy mission in April 1967.  It also shows the applicant informed him that he was wounded in the rocket attack that killed four of his men.)

    	(1)  1SG S---- states, in pertinent part, "Our base camp in Vietnam was located in Dong Ha just south of the DMZ (demilitarized zone]."  He also states,  "I do remember the incident because I lost good friends in that attack."

    	(2)  He then adds, "Let me reiterate for the record that I am aware of the incident because we were attached to the same battalion, same battery,
'A' Battery.  I was not assigned to that particular incident but was involved in several horrendous attacks along with [the applicant] on and around the DMZ.  Let me state we took a beating at the fire bases along the DMZ and I received two Purple Hearts while in the 1st Battalion, 44th Field Artillery.  As I recall my track was assigned on a mission at Con Thien at the time and when we went back to base camp [I] was informed by my Platoon Sergeant that [the applicant's] track was blown up and that later he was sent to a hospital ship for evaluation."

    	(3)  He recommends that the applicant be awarded the Purple Heart.

   d.  A witness statement by Mr. Louis B----, the company clerk of A Battery at the time of the 20 April 1967 incident.  (It shows he recently met the applicant at an Army reunion and they talked about the incident that resulted in the loss of four fellow Soldiers and the wounding of the applicant.)

    	(1)  Mr. B---- states, "As I recall our Captain probably filled out [after action] reports of this kind for Headquarters Battalion."  He adds, "I know that several days after the attack [the applicant] returned to base camp and was later sent to a Navy hospital ship because he could not function.  There was so much that went on during those times it's difficult to remember all the details."

   	(2)  Mr. B---- adds the applicant informed him that "LT J---recommended him [the applicant] for a Bronze Star Medal for valor which I vaguely remember."

   	(3)  He recommends that the applicant be awarded the Purple Heart.

   e.  A Department of Veterans Affairs, Nashville Vet Center, Nashville, TN, letter, dated 14 July 2014.  Daniel J. E----, Clinical Coordinator/Readjustment Counselor, and Chris B----, Team Leader, provide information in support of the applicant's effort to receive the Purple Heart.  They provide a summary of the applicant's service in Vietnam and the incident on 20 April 1967, in an effort to substantiate his entitlement to the Purple Heart.

9.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.  It shows the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.

   a.  A wound is defined as an injury to any part of the body from an outside force, element, or agent sustained in action in the face of the armed enemy or as a result of a hostile act of such enemy.
   
   b.  In order to support awarding a member the Purple Heart, 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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for award of the Purple Heart based on an enemy attack, on 20 April 1967, which caused shrapnel and burn wounds to his legs was carefully considered.

   a.  The applicant does not provide and the record does not contain any contemporaneous medical records that show he was treated for wounds or injuries that were the result of hostile action in the RVN.

   b.  The statements the applicant provides in support of his request were carefully considered.  

    	(1)  The former battery commander recalls the applicant received shrapnel injuries and burns to his legs on 20 April 1967; however, it does not appear he was eyewitness to the incident.  It is noted that he states, "[The applicant] was eligible to receive a Purple Heart, but refused any medals."  Despite this refusal by the applicant, it is not clear why the former battery commander did not comply with the Army regulation and submit the required documentation for an award to which the commander apparently believed the applicant was entitled.  (It is noted that the evidence of record shows this statement was prepared for the former battery commander's signature by an advocate acting on behalf of the applicant.)

    	(2)  The two witness statements fail to show that the former 1SG or former company clerk were eyewitness (emphasis added) to the incident on 20 April 1967.  In fact, the former 1SG states, "I was not assigned to that particular incident" and the former company clerk is unable to recall submitting any reports or documents pertaining to the incident.

    	(3)  Thus, these three statements (that do not show any evidence of being eyewitness statements) provide insufficient evidence to support a claim to the Purple Heart.

3.  The applicant's military service records do not show any evidence that he was wounded or injured in action as a result of a hostile act of the enemy, or that any such wound or injury required treatment by medical personnel and was made a matter of official record.

   a.  The applicant's name is not listed on the Vietnam casualty roster.

   b.  There are no orders or any other evidence that shows he was awarded the Purple Heart.

   c.  Thus, the evidence of record does not support the applicant's claim.

4.  Therefore, in view of the foregoing, there is an insufficient evidentiary basis for granting the request.

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)                                         AR20140019343



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ABCMR Record of Proceedings (cont)                                         AR20140019343



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