BOARD DATE: 11 July 2017 DOCKET NUMBER: AR20160002903 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 11 July 2017 DOCKET NUMBER: AR20160002903 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. BOARD DATE: 11 July 2017 DOCKET NUMBER: AR20160002903 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 did not receive the Purple Heart for being wounded in action in Vietnam. At the time of his discharge he was told he was not eligible for the Purple Heart because his injuries were believed to be from "friendly fire" and this was not a reason to receive the award at that time. He now understands that this is not the case. He further states his official medical records are located at the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri. 3. The applicant provides: * Letter to the Army Board for Correction of Military Records (ABCMR) * 4-page news article * DA Form 20 (Enlisted Qualification Record) * 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 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 into the Army of the United States on 22 July 1969. 3. His DA Form 20 (Enlisted Qualification Record), audited 20 December 1969, shows he served in the Republic of Vietnam from 16 December 1969 through 17 November 1970 with Company C, 1st Battalion, 12th Cavalry Regiment, 1st Cavalry Division (Airmobile). 4. Item 39 (Identifying Body Marks, Scars, Tattoos) of his Standard Form 88 (Report of Medical Examination), dated 28 March 1971, completed as part of his separation from the service shows is marked "Abnormal" followed by the entry "Shrap R big toe." There is no notation indicating the causative injury was the result of hostile action. 5. He was honorably released from active duty on 22 April 1971. His DD Form 214 does not show award of the Purple Heart. 6. A review of his records did not yield general orders awarding him the Purple Heart. Additionally: a. Item 40 (Wounds) of his DA Form 20 is blank and item 41 (Awards and Decorations) does not show award of the Purple Heart. b. His name is not shown on the Vietnam casualty roster as having sustained an injury as a result of hostile action. c. A 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 U.S. Army Human Resources Command Military Awards Branch, failed to reveal any Purple Heart orders for him. 7. The applicant provided: a. A letter addressed to ABCM from the former medic of 2d Platoon, Company C, 1st Battalion, 12th Cavalry Regiment, dated 5 January 2016, states the applicant received substantial injuries to one of his feet on 30 June 1970, which resulted in his evacuation to a hospital in the rear. He states the injury was the result of "friendly fire" which caused injury to approximately 24 Soldiers and the death of 2 other Soldiers. b. An news article from the Peoria Journal Star written by A____ K____ and posted to the Internet on 28 May 2012 recounts the story of M____ D____, a radio telephone operator (RTO) who lost his life during the incident. His former company commander remembered that enemy troops were reported near the unit's camp on the Cambodian border. About 1 a.m., mortar rounds from a nearby U.S. fire base began to rain on the camp. Whether it was faulty rounds or bad information, the unit was being shelled by their own side. The RTO was killed instantly by a piece of shrapnel in the attack. In all, 2 were killed and 29 were wounded in the "friendly fire" incident. The article recounts the efforts of the RTO's cousin who worked with a Member of Congress to get the Purple Heart approved. REFERENCES: 1. Title 10, U.S. Code, section 1129 (Purple Heart: Members Killed or Wounded in Action by Friendly Fire), states: a. For purposes of the award of the Purple Heart, the Secretary concerned shall treat a member of the Armed Forces described in subsection (b) in the same manner as a member who is killed or wounded in action as the result of an act of an enemy of the United States. b. A member described in this subsection is a member who is killed or wounded in action by weapon fire while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States, unless (in the case of a wound) the wound is the result of willful misconduct of the member. 2. Included as part of the Department of Defense Appropriations Act for Fiscal Year 1994 was 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." 3. 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. 4. 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. 5. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant requests award of the Purple Heart and correction of his DD Form 214 to show this award. 2. The criteria for award of the Purple Heart for injuries sustained by "friendly fire" requires the submission of substantiating evidence to verify the injury/wound was the result of friendly fire in the heat of battle and the projectile was intended to inflict damage or destroy enemy troops or equipment. In addition, the medical treatment must have been made a matter of official record. 3. Although the applicant contends his injury was caused by "friendly fire," there are no medical and/or tactical evidence to substantiate his claim. Notwithstanding his sincerity, in the absence of documentary evidence which conclusively shows he was wounded or injured as a result of hostile action or the result of "friendly fire" and treated for those wounds, there appears to be no basis for granting the applicant's requested relief. 4. The applicant claims his medical records reside at the VA Regional Office in St. Louis, MO, and may assist in supporting his claim; however, the ABCMR is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002903 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002903 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2