IN THE CASE OF:	  

		BOARD DATE:	 28 July 2015

		DOCKET NUMBER:  AR20140021588


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 to be awarded the Purple Heart.  

2.  The applicant states, in effect, the following:

     a.  He should be awarded the Purple Heart for wounds received in action on 31 January 1968, at the beginning of the TET Offensive [Republic of Vietnam], which were not reported. 

     b.  His base camp in Long Binh was attacked on 31 January 1968 and his company area received small arms fire along with rockets and mortars.

     c.  He was wounded during the attack when he was pushed to the cement sidewalk while running to his assigned bunker and sustained injuries to his right leg, including deep lacerations, blood loss, and bruising.

     d.  It was chaotic for the next several days, and with all the things going on, he elected not to seek medical attention even through members of his company told him he should.  

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 
* Army Commendation Medal Certificate, dated 6 April 1968, with citation for the period April 1967 to April 1968
* Two witness statements

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 enlisted in the Regular Army on 4 April 1966.  He completed training and was awarded military occupational specialty (MOS) 05G (Communications Security Monitor).  The highest rank/grade he attained during his period of military service was specialist five (SP5)/E-5.  

3.  His record contains a DA Form 20 (Enlisted Qualification Record), which shows in:

	a.  Item 31 (Foreign Service), he served in the Republic of Vietnam from on or about 8 April 1967 to on or about 1 April 1968;  

	b.  Item 40 (Wounds), no entry that shows he was wounded; and

	c.  Item 41 (Awards and Decorations), no entry that shows he was awarded the Purple Heart.

4. His record contains a Standard Form 89 (Report of Medical History), which the applicant filled out on 11 December 1969 and authenticated with his signature, as part of his separation physical from the U.S. Army.   He stated he was in good health, he did not state any injuries or aliments, and he checked the "No" block on the following statements:

* "Have you ever had any illness or injury other than those already noted?"
* "Have you consulted or been treated by clinics, physicians, healers, or other practitioners within the past 5 years?"

5.  He was honorably released from active duty on 23 February 1970.  His        DD Form 214 shows he was credited with the completion of 3 years, 10 months, and 20 days of total active service, including 2 years, 3 months, and 2 days of foreign service.  His DD Form 214 does not indicate he was awarded the Purple Heart.  

6.  A review of his record reveals no orders or a recommendation for the award of the Purple Heart.

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 U.S. Army Human Resources Command, failed to reveal any orders that show he was awarded the Purple Heart.

8.  He provides an Army Commendation Medal Certificate with citation, signed by the Commander, II Field Force Vietnam on 6 April 1968, for meritorious service in the Republic of Vietnam during the period of April 1967 to April 1968.

9.  He also provides a witness statement from a fellow Soldier in his unit, SGM W.A., who states the following:

     a.  During the TET Offensive of 1968, both were assigned to Headquarters and Headquarters Company (HHC), 303d RR [Radio Research] Battalion based at Long Binh, outside of Saigon.

     b.  On the first night of the attack, the area was hit with rockets and mortars.  During a break in the incoming fire, he and [the applicant] ran to a perimeter bunker in the defense of the base.

     c.  En-route to the bunker, [the applicant] was knocked down or fell.  He remembers the next morning seeing that [the applicant's] fatigues were torn and a bloody wound on his leg.  He suggested that he get it checked out with the medics; however, [the applicant] refused saying they were needed for the more seriously wounded.  

10.  He also provides another witness statement from a fellow Soldier in his unit, a T.H.W., who states the following:

     a.  On 31 January 1968 at about 2:30 a.m. the TET Offensive started at the     II Field Force complex.  They were at HHC, 303d RR Battalion.

     b.  The attack started with a rocket assault followed by a ground attack.  They were assigned as the ready reaction force and were to assemble at a bunker near the mess hall.  

     c.  There was a cement walkway going part way to the bunker.  As they were running [SGM] W.A. and [the applicant] collided into each other.  This sent [the applicant] to the ground landing on the cement which resulted in a bad tear to his knee.  He remembers a lot of blood associated with the fall.     

11.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he be awarded the Purple Heart was carefully considered.     

2.  His record contains no evidence that he was wounded as a result of a hostile action while serving in the Republic of Vietnam.  However, he does provide two eye-witness accounts of a wound/injury that is in question.  These statements corroborate that his wound/injury was a result of a non-hostile accident/incident.  He collided with a fellow Soldier and injured his knee/leg as a result of falling on a cement walkway.  The applicant himself, in his application, states he was pushed to the cement sidewalk and sustained an injury to his right leg which included deep lacerations, blood loss, and bruising.      

3.  The governing Army regulation provides that in order to be awarded the Purple Heart, a wound must be as a result of a hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.  The applicant's wound/injury did not result from hostile action but by an accident; therefore, he does not qualify for award of the Purple Heart. 
 
4.  Therefore, there is no basis to award him the Purple Heart.  





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)                                         AR20100015543



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ABCMR Record of Proceedings (cont)                                         AR20140021588



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