IN THE CASE OF: BOARD DATE: 10 November 2015 DOCKET NUMBER: AR20150004478 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 the Purple Heart (1st Oak Leaf Cluster). 2. The applicant states the second award of the Purple Heart is not listed on his DD Form 214. 3. The applicant provides his DD Form 214 and the front page of General Orders (GO) Number 107, dated 12 November 1968. 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 was inducted into the Army of the United States on 27 March 1968 and he held military occupational specialty 11B (Light Weapons Infantryman). 3. Special Orders (SO) Number 136, issued by Headquarters, U.S. Army Training Center, Fort Bragg, NC, on 15 May 1968 awarded him the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14). 4. SO Number 153, issued by Headquarters, U.S. Army Training Center, Fort Ord, CA, on 29 July 1968 awarded him the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). 5. He served in Vietnam from 19 August to 24 November 1968. He was assigned to Troop F, 2nd Squadron, 11th Armored Cavalry Regiment. 6. His records contain a Narrative Summary that shows he was initially “admitted to the sick list,” in Vietnam on 11 November 1968 because of wounds received when a canister round from a friendly tank inadvertently exploded, inflicting multiple fragment wounds on his left forearm with an open fracture of the left ulna. He underwent debridement of the forearm wound and delayed primary wound closure five days later. His name was “admitted” to the sick list at the Portsmouth Naval Hospital, Portsmouth, VA, on 5 December 1968. Following 30 days of convalescent leave, he underwent surgery on 10 February 1969. His splint was removed and he started physical therapy 6 March 1969. 7. Following his release from the Medical Detachment of the Naval Hospital, he was reassigned to Fort Brag where he remained until separation. He was honorably released from active duty in the rank/grade of specialist four/E-4 on 26 March 1970. 8. His DD Form 214 shows he completed 2 years of active service with no lost time. His DD Form 214 also shows he was awarded or authorized the National Defense Service Medal, Vietnam Service Medal, and Vietnam Campaign Medal. 9. He provides the front page of GO Number 107, issued by Headquarters, 36th Evacuation Hospital in Vietnam awarding him the Purple Heart (1st Oak Leaf Cluster) for wounds received in action on 10 November 1968. 10. There is nothing in several typical documents that show he was injured or wounded as a result of hostile action: a. A review of the Awards and Decorations Computer Assisted Retrieval System maintained by the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders for the Purple Heart pertaining to the applicant. b. There are no GO in his records for the first award of the Purple Heart and the GO he provides for the second award is incomplete in that it is missing the authentication. c. His name is not shown on the Vietnam casualty roster, neither for the 1 November 1968 wound nor for any other wound. d. His records do not contain a Western Union Telegram informing his next of kin of an injury/wound or any Army Adjutant General correspondence regarding an injury/wound. e. 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, of the version in effect at the time, 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 (wounds) of the DA Form 20. This regulation further stated that the date the wound or injury occurred would also be placed in item 40. 11. Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained while in action against and 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. 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. 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. 12. Army Regulation 600-8-22 also 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. DISCUSSION AND CONCLUSIONS: 1. The criteria for 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 medical treatment by medical personnel, and the medical treatment must have been made a matter of official record. 2. Unfortunately, there are no available orders to support the applicant’s first award of the Purple Heat. Additionally, the preponderance of the evidence clearly shows the injury he sustained on 11 November 1968 was a result of an accident. There is insufficient evidence to show the "friendly fire" was in the "heat of battle," i.e., the "friendly" projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment. 3. The applicant's contention and sincerity are not in question. However, the three components for award of the Purple Heart have not been satisfied in this case. In the absence of documentation that conclusively shows he was wounded or injured as a result of enemy action, treated for those wounds, and that the treatment was made a matter of official record, there is an insufficient evidentiary basis for awarding 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) AR20150004478 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004478 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1