IN THE CASE OF: BOARD DATE: 21 January 2016 DOCKET NUMBER: AR20150006977 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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Purple Heart. 2. The applicant states he served in the Republic of Vietnam (RVN) and was assigned to Troop C, 1st Squadron, 4th Cavalry Regiment. a. He states that he was riding on a tank in a Rome plow situation. [The U.S. Army used large, armored, specially modified bulldozers in South Vietnam during the Vietnam War to clear jungle vegetation and cover that could be used by the Viet Cong and North Vietnamese forces.] Closing in on the enemy, they were fired upon by the enemy, the tank was hit, and shrapnel hit his left leg below the knee and also his right upper arm. A medical evacuation (Medevac) helicopter approached, but could not land due to enemy fire. The applicant states, "I caught hold on [the] Huey landing bars and was pulled inside as we were taking off. Medevac was drawing fire the whole time." b. He was taken to Nui Ba Den (Black Virgin Mountain) Hospital and admitted on 30 June 1969. The hospital was bombed that night and the patients were moved to the back of the hospital. When his wound was washed the solution entered and exited the wound and it was discovered that the wound's exit hole was larger than the entry hole. He was told that he was lucky that the bone was not damaged by the shell fragment. He had numbness in both his leg and spine and was told that it was likely the numbness would remain (and it has). He adds that his military medical records show that he was treated for the wound. c. He was discharged from the hospital on 3 July 1969. He performed duties as a driver for his unit until he was released to perform field duty on 2 August 1969. Toward the end of his tour of duty he served as a member of the color guard for the 1st Infantry Division. He departed Vietnam on 7 April 1970. He expected to receive the Purple Heart after he separated from the Army, but he never received the award. He adds that he has contacted his congressman in an effort to receive the award. 3. The applicant provides copies of five pages of his military medical records and his DD Form 214. 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 and entered active duty in the U.S. Army on 8 January 1971 for a period of 3 years. He was awarded military occupational specialty (MOS) 11E (Armor Crewman). 3. The applicant's DA Form 20 (Enlisted Qualification Record), in pertinent part, shows in: * item 31 (Foreign Service), he served in Vietnam from 3 June 1969 through 7 April 1970 * item 38 (Record of Assignments), he served as a tank driver (in duty MOS 11E20) while assigned to – * Troop C, 1st Squadron, 4th Cavalry, 1st Infantry Division, from 13 June 1969 through 24 March 1970 * 35th Infantry Platoon (Special Duty), 1st Infantry Division, on 25 March * Headquarters and Headquarters Company, 1st Infantry Division, from 26 March through 6 April 1970 * item 40 (Wounds), is blank (no entries) * item 41 (Awards and Decorations) does not list the Purple Heart 4. A review of a Standard Form (SF) 89 (Report of Medical History) and SF 88 (Report of Medical Examination), prepared by the applicant and the examining physician to document the applicant's separation physical examination on 10 December 1970 show the – * applicant noted that his leg was injured and treated for shrapnel that he received while serving in RVN * examining physician noted shrapnel scars, right lower extremity 5. The applicant's DD Form 214 shows he was honorably released from active duty on 8 January 1971. He had completed 3 years of total active duty service during this period that included 9 months and 5 days of foreign service. Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) does not list the Purple Heart. 6. 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. 7. A review of The Adjutant General's Office, Casualty Division's Vietnam casualty roster failed to reveal the applicant's name. 8. A request for 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 return award orders for the Purple Heart pertaining to the applicant. 9. In support of his application the applicant provides five pages of his military medical records that span the period from 30 June 1969 through 5 September 1969 and show the medical treatment he received. a. The medical records, in pertinent part, show on – * 30 June 1969, Possible fragment wound to the upper one-third anterior left leg. X-ray – no fragment. Has deep penetration wound. No artery/nerve damage noted. Disposition: * (1) Cleaned * (2) Tetracycline – Phisohex [antibacterial skin wash] * (3) Admit * 3 July 1969, Discharged to light duty * 5 July 1969, GSW [gunshot wound] left calf upper one-third. Rx [Treatment]: Cleansed with Phisohex – DSD [Dry Sterile Dressing] b. Further review of the military medical records failed to reveal any evidence of an entry showing the wound/injury was incurred as a result of hostile action. 10. 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 in the RVN, on 30 June 1969, which caused shrapnel wounds to his lower left leg and upper arm was carefully considered. a. The military medical records the applicant provides show he sustained a possible (emphasis added) fragment wound to the upper one-third anterior left leg on 30 June 1969. A subsequent entry in his medical records shows he received follow-up treatment to clean a gunshot (emphasis added) wound. b. There is no evidence in the available military medical records that shows the wound the applicant sustained on 30 June 1969 was incurred as a result of hostile action. c. Thus, the available military medical records provide insufficient evidence to support a claim to the Purple Heart. 2. 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 (emphasis added) 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. 3. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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) AR20150006977 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006977 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1