IN THE CASE OF:	  

		BOARD DATE:	  18 August 2015

		DOCKET NUMBER:  AR20150000163 


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 records to show award of the Purple Heart.

2.  The applicant states he was awarded the Purple Heart when he was wounded by friendly fire while on temporary duty near Phu Cat Air Force Base in Vietnam. 
He was with the 84th Engineer Battalion on a perimeter harassment assignment and when one Soldier's gun jammed, he picked up another Soldier's rifle and fired a shot to test whether the rifle was loaded.  It was loaded and he took a bullet above his right knee.  He was hospitalized at Quin Yon for 7 days.  General Westmorland visited the hospital with the press while he was there.  He spoke to him and he had his photo taken with him.  He gave him a Purple Heart and he had the medal for years but lost it in a house fire.  He would like it replaced. 

3.  The applicant does not provide any additional evidence. 

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's records show he enlisted in the Regular Army on 31 July 1967 and he held military occupational specialty 64B (Heavy Vehicle Driver).   He served in Vietnam from on or about 21 December 1967 to on or about 20 June 1968.  He was assigned to Company A, 84th Engineer Battalion.

3.  His service records contain a DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status), dated 10 June 1968.  It says at 2100 hours on 10 May 1968, the applicant was lying on his bunk when a weapon held by another Soldier accidentally discharged.  The round struck the applicant in the right thigh.  The injury was determined to be in the line of duty.

4.  The applicant was treated at the battalion aid station, 50th Mechanized Infantry, and later transferred through Camp Zama to the Letterman Military Hospital in San Francisco. 

5.  He was ultimately discharged on 14 May 1968 by reason of unsuitability with a general discharge.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) does not show he was awarded the Purple Heart. 

6.  There is no evidence of record that shows he was injured or wounded as a result of hostile action or that he was awarded the Purple Heart.  Nothing in several typical sources shows he was wounded or injured as a result of hostile action.

	a.  His available medical records reflect an accidental injury.  None of the available medical documents show this injury was caused by the enemy.  His separation physical does not mention a combat injury.

	b.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not show a combat wound or injury.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9, stated a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization, would be entered in item 40 of the DA Form 20.  This regulation further stated the date the wound or injury occurred would also be placed in item 40.

	c.  His personnel records do not contain an official Army message or a Western Union telegram notifying his next of kin of an injury or wound sustained in action.  This was the proper notification procedure for battle injuries at the time.

	d.  His name is not shown on the Vietnam casualty listing.  This is a listing of Vietnam era casualties commonly is used to verify entitlement to award of the Purple Heart.

7.  The Department of Defense Appropriations Act for Fiscal Year 1994 included an amendment to the rules governing award of the Purple Heart.  While the original rules established that the Purple Heart would be awarded to individuals killed or wounded as a result of hostile action, the amendment enabled the Secretaries of each department to award the Purple Heart to members of the Armed Forces who were killed or wounded in action by weapons fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States.  This ruling granted the service Secretaries the authority to award the Purple Heart to individuals directly engaged in armed conflict who were killed or wounded as a result of "friendly fire."

8.  Army Regulation 600-8-22 (Military Awards) provides that 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 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:

	a.  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; and/or concussion injuries caused as a result of enemy generated explosions.

	b.  The regulation 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.

	c.  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; and/or jump injuries not caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather, he or she is entitled to it upon meeting specific criteria.  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.

2.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify the injury/wound was the result of hostile action, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

3.  In this case, the evidence of record shows the applicant was involved in an accidental discharge of a weapon by another Soldier and he later received treatment for this injury.  However, his injury is clearly identified as an accident.  Nowhere in the line-of-duty investigation and/or the available treatment records does it show the injury was a result of hostile action (i.e., that the discharged bullet was released with the full intent of inflicting damage or destroying enemy troops or equipment).

4.  Aside from this accident, the applicant's service record is void of any evidence that shows he was wounded or injured as a result of enemy action.  His name is not listed on the Vietnam casualty listing.  There is nothing in multiple typical sources that confirm he was wounded as a result of hostile action or that he required treatment by medical personnel.

5.  Notwithstanding his sincerity, in the absence of additional official documentary evidence to corroborate the events that led to his alleged injury, or additional documentation that conclusively shows he was wounded or injured as a result of hostile action and treated for those wounds, there is an insufficient evidentiary basis for granting the applicant's requested relief.  If the applicant is able to provide the orders that awarded him the Purple Heart, he may resubmit his application to this Board for reconsideration within 1 year of the Board's decision.


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 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)                                         AR20150000163



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ABCMR Record of Proceedings (cont)                                         AR20150000163



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