IN THE CASE OF: BOARD DATE: 31 August 2010 DOCKET NUMBER: AR20100009810 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 that he be awarded the Purple Heart. 2. The applicant states, in effect, that while riding in the communications track in heavily wooded area on a combat sweep, his track stopped after hitting a tree. When the track backed up, a limb fell and injured the hand of the machine gunner in the turret. Once he was removed, he (the applicant) took his place and when the track attempted move again, a second branch swung around and hit him in the face, causing him to be medically evacuated to a hospital for treatment. He spent 32 days in the hospital and another 4 to 6 weeks on restricted duty before returning to duty. 3. The applicant provides: * Four third-party statements from members of his unit in Vietnam * A copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Four pages of his medical records * A copy of a 5 June 1967 DA Form 1 (Morning Report) 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 in Brooklyn, New York on 7 December 1965 and was transferred to Fort Lewis, Washington for assignment to Company A, 2d Battalion, 22d Infantry Regiment, 4th Infantry Division to undergo his training as a light weapons infantryman. He was advanced to the pay grade of E-4 on 17 September 1966. 3. On 22 September 1966, he was transferred to Vietnam with his unit. He was awarded the Combat Infantryman Badge (CIB) on 18 November 1966 and was promoted to the rank of sergeant on 13 May 1967. 4. He departed Vietnam on 11 September 1967 and was transferred to Oakland Army Base, California where he was honorably released from active duty (REFRAD) on 15 September 1967 as an overseas returnee. He had served 1 year, 9 months, and 9 days of total active service and he was awarded the National Defense Service Medal, the Vietnam Service Medal with two bronze service stars, the Vietnam Campaign Medal, the Combat Infantryman Badge, the Presidential Unit Citation, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation. 5. A review of the available records to include a search of the Vietnam Casualty Listing failed to show that the applicant was wounded as a result of enemy action or that he was reported as a battle casualty. 6. A review of the medical records provided by the applicant show that on 4 June 1967 while conducting a combat sweep, the applicant was struck in the face by a tree limb while riding on an armored personnel carrier (APC) which required hospitalization and treatment. 7. A review of the third-party statements provided by the applicant indicate essentially the same information as conveyed by the applicant. 8. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained 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 a medical officer, and the medical treatment must have been made a matter of official record. DISCUSSION AND CONCLUSIONS: 1. The applicant’s contention that he should have been awarded the Purple Heart for his injuries in Vietnam on 4 June 1967 has been noted; however, the applicant has failed to show through the evidence submitted with his application and the evidence of record that his injury was the resultant cause of enemy action. 2. While there is no doubt that he was in fact injured on the date in question, there is no evidence that enemy action was in any way involved in the injury. By his own admission and that of his comrades, the APC struck a tree while trying to negotiate the heavy jungle and during an attempt to extract the APC, the injury in question occurred. 3. Accordingly, it does not appear that the applicant’s injury meets the criteria for award of the Purple Heart. 4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ____X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. 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. 2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War. The applicant and all Americans should be justifiably proud of his service in arms. _______ _ _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) AR20100009810 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100009810 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1