IN THE CASE OF:	  

		BOARD DATE:	  25 August 2015

		DOCKET NUMBER:  AR20150000829 


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 based on the injury he incurred in Vietnam. 

2.  The applicant states:

	a.  He received a shrapnel injury while serving in Vietnam after an anti-personnel mine planted by the enemy exploded.  The piece of shrapnel had threading on it that ours did not have.  His military occupational specialty (MOS) was 11C (Indirect Fire Infantryman) which was mortars.  He did his advanced individual training (AIT) at Fort Polk, LA, and was sent to Vietnam on 19 August 1971.  He served as a Fire Direction Center (FDC) mortar man on the Ridge Line, Hill 350, 270, Rawhide, and Maude.  

	b.  In early February 1972, his company, Company C, 1st Battalion, 46th Infantry, was attached to the 196th Infantry Brigade and started a seek and destroy mission that lasted 21 days.  The mission was located about 6 miles west of Hill 350.  On the 21st day, they were ordered to police the area because they were being taken to the rear for rest and recuperation.  He and two other FDC mortar men started burning old letters, c-ration boxes, and anything that could be identified by the Viet Cong (VC).  While walking in the area and grabbing empty boxes and kicking at small boxes lodged between bamboo trees, he heard a click-boom and was knocked to the ground.  He is providing statements from two infantrymen who were standing next to him at the time of the explosion.

	c.  The explosion blew the right heel of his boot off making it difficult for him to stand upright.  He soon noticed that somebody must have gotten wounded because there was a lot of blood in the area.  Initially, he didn't see any injuries on himself or anyone else.  A medic suddenly showed up and told him to lie down.  That is when he discovered that a chunk of muscle had been blown out of his right arm just below the elbow.  The medic placed several bandages on his wound and called for a medical evacuation helicopter.  The medic gave him two morphine injections in his right thigh and started an inter-venous (IV) drip.  In hindsight, he believes one injection would have been sufficient.

	d.  He was flown to the 95th Evacuation Hospital in Danang and was under the effects of morphine which caused him to say some unusual things.  He thought the door gunner was his brother, while he has none, and the nurse who greeted him at the hospital was his sister.  Evidently, the nurse asked him what happened and he reportedly said "I shot myself."  The nurse wrote that statement down but clearly that was not what brought him to the hospital.  He was hospitalized for several weeks and received additional treatment for the infection that followed.

	e.  During the mission that started this situation, they received a half dozen or so VC 80mm mortar rounds close to their encampment on several nights.  They also had enemy small arms fire within 50 to 75 yards of their perimeter and his company, including himself, returned fire and did fire three mortar rounds and two white prosperous marker rounds as well.  The device that exploded and injured him was not friendly fire.  The fire was the size of a small wastebasket and not a roaring inferno.  It is his opinion, and his buddies' opinions, [that what exploded was] a common, often used anti-personnel concoction that more often than not was self-improvised by the VC.

	f.  The fact the device blew the heel of his boot off and a quarter size piece of shrapnel lodged in his right arm causing him a service-connected disability since 1972 speaks of the severity of the explosion.  It took him 40 years to be able to find the Soldiers who could verify his injuries.  He has the piece of shrapnel that was taken from his arm while at the hospital.  It has never been cleaned up and appears as it did the day the doctors removed it.

3.  The applicant provides two statements of support, DA Form 3647 (Clinical Record Cover Sheet), Standard Form (SF) 509 (Doctor's Progress Notes), SF 608 (Chronological Record of Medical Care), and SF 513 (Consultation Sheet).



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 22 March 1971 and he held MOS 11C.  He served in Vietnam while assigned as follows from:

* 18 August to 2 September 1971, 23rd Replacement Detachment
* 3 September to 4 October 1971, Company C, 1st Battalion, 46th Infantry, 196th Infantry Brigade
* 5 October 1971 to 30 January 1972, Company E, 1st Battalion, 46th Infantry, 196th Infantry Brigade
* 31 January to 12 April 1972, Company C, 1st Battalion, 46th Infantry, 196th Infantry Brigade
* 13 April to 22 June 1972, Headquarters and Headquarters Company (HHC), 1st Battalion, 46th Infantry, 196th Infantry Brigade

3.  The applicant provides a/an:

* DA Form 3647, dated 3 April 1972, wherein it shows he was admitted to the 95th Evacuation Hospital on 29 March 1972 for an open wound to his right forearm and released on 3 April 1972; it states the line of duty (LOD) was "Undetermined:  Pending Investigation"
* SF 509, wherein it shows on 6 April 1972 a patient (the name is not shown) had an infection in the right arm; on 10 April 1972 the patient needed stiches removed from the right arm and it was noted the patient received a fragment wound on 29 March [1972]
* SF 608, wherein it shows on 6 May 1972 the applicant was treated for an abscess on the left arm, the exterior surface of the forearm was dressed, and he was given a heating pad

4.  He also provided an SF 513, wherein it shows the applicant was seen at Irwin Army Hospital, Fort Riley, KS, on 14 September 1972.  The examining physician noted the applicant fractured his right ulnar on 17 April 1966 after an automobile accident.  After that date, he noticed numbness in his right small finger.  Had shrapnel wound in February 1972 on the right forearm.  Since that time, he had noticed numbness of the right forearm and increasing numbness of the right small finger.

5.  He was honorably released from active duty on 20 December 1972 and he was transferred to the U.S. Army Reserve.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued does not show award of the Purple Heart.  

6.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does contain an entry and item 41 (Awards and Decorations) does not show the Purple Heart.

7.  A review of the Adjutant General's Office, Casualty Division's Vietnam casualty listing failed to show his name as a casualty.

8.  There is no medical evidence in his available record that shows he was wounded as a result of hostile action while in an active duty status.

9.  His record contains a letter, dated 29 August 1985, from Lieutenant Colonel (LTC) HL, Chief, Military Awards Branch, U.S. Army Human Resources Command (HRC) to a Mr. RJG.  The letter stated it was in response to Mr. RJG's request for award of the Purple Heart for the applicant.  LTC HL stated, in part:

	a.  While they had no reason to doubt the applicant's version of the injury, they could find no evidence attributing his injury to any act of the enemy.  There was nothing in his record to indicate he was wounded in action (WIA).  In fact, as the applicant pointed out, the medical records indicated that an "M-16 went off accidentally while in the field."  Another time the records indicated that he "suffered a shrapnel wound to the right arm while burning trash."  The applicant's version was entirely different.  

	b.  Because the applicant's medical records did not indicate that he was WIA, he was not considered eligible for the Purple Heart.  If he considered his records to be incorrect, he may submit an application to the ABCMR. 

10.  The applicant provides two notarized statements of support:

	a.  One, undated, wherein a Mr. JF stated they had 3 week missions in the bush and burned their garbage just before they were picked up by the helicopters and were careful not to burn anything explosive.  His memory comes and goes when he thinks of his time in Vietnam but the day in question was the exception.  He remembers looking down at the burning hole, the sun was shining, a large tree was to his right, and the applicant was on his left when they hear a bang.  The applicant was hit in the arm; he did not shoot himself.  He has no memory of what happened after that.

	b.  One, dated 26 November 2014, wherein a Mr. LK stated he served in Vietnam with the applicant in the 196th Infantry Brigade from late January to June 1972 as an infantry foot Soldier.  The applicant was injured around late February or early March.  The platoon had been on patrol in the bush for a few weeks preparing to be airlifted back to base camp.  They were cleaning the area and burning trash.  The applicant was tending the fire when there was an explosion by the fire.  When they got back there, it was obvious the applicant had stepped on a booby trap.  The heel of his boot was blown off and he had been hit on the arm.  He was medically evacuated to the hospital in Danang and was treated there.

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

DISCUSSION AND CONCLUSIONS:

1.  The criteria for the Purple Heart requires the submission of substantiating evidence to verify that a Soldier received a wound/injury as the result of hostile action, the wound/injury must have required medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.  

2.  Notwithstanding the applicant's sincerity, while the medical evidence he provided shows he sustained a wound to his right arm in Vietnam on 29 March 1972, it does not state the wound was received as the result of hostile action or caused by an enemy instrument of war.  His name is not listed on the Vietnam casualty roster and his DA Form 20 does not show he was WIA.

3.  He provides a statement of support wherein one individual stated the applicant was wounded in the arm and had not shot himself.  Another individual stated the applicant had been hit in the arm while burning trash and opined he had to have stepped on a booby trap; however, there is no evidence to support his opinion.
4.  Regrettably, in the absence of conclusive evidence that shows he was WIA there is an insufficient basis for granting his request for award of the Purple Heart. 

5.  Nevertheless, the applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant an all Americans should be justifiably proud of his service in arms.

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)                                         AR20150000829





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ABCMR Record of Proceedings (cont)                                         AR20150000829



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