IN THE CASE OF: BOARD DATE: 7 November 2017 DOCKET NUMBER: AR20160004565 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 IN THE CASE OF: BOARD DATE: 7 November 2017 DOCKET NUMBER: AR20160004565 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. IN THE CASE OF: BOARD DATE: 7 November 2017 DOCKET NUMBER: AR20160004565 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 to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 15 October 1970 to show he was awarded the Purple Heart (2nd Award). 2. The applicant states that though he served in Vietnam, sending him was illegal because he was not a U.S. citizen. He accidently shot himself in the foot while in a combat zone in Vietnam. The injury was not a result of an error on his part. He was injured when his sergeant (SGT) pulled him forward; this caused him to shoot himself in the foot with his own rifle. Though he was injured in a combat zone, he did not receive the Purple Heart (2nd Award) because his injury was accidental. When he was previously denied the Purple Heart (2nd Award), he was told it was because his injury was self-inflicted. 3. The applicant does not provide any supporting documentation. 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. A DA Form 2784 (Request for and Results of Personnel Security Action), dated 8 July 1968, shows that the applicant underwent a background investigation, which was required to determine his acceptability for his entrance into the Armed Forces. He was found mentally, morally, and physical qualified for military service. His Registration Card (Immigration and Naturalization (IN) Form 1-151) was presented to the Armed Forces Examining and Entrance Station (AFEES) upon his enlistment. 3. His DD Form 4 (Enlistment Contract – Armed Forces of the U.S.) shows the applicant enlisted at the Armed Forces Examining and Entrance Station, Seattle, WA, under the authority of Army Regulation 601-210 (Personnel Procurement – Regular Army Enlistment Program), on 22 August 1968. This form further indicates he was a Canadian citizen and he was born in Winnipeg, Canada. His point of entry into the United States was listed as Blaine, WA, and his date of entry into the United States was 24 June 1968. Additionally, this form lists his Alien Registration number as "A-17 125 124." 4. After initial training, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman). 5. The applicant’s DA Form 20 (Enlisted Qualification Record) contains the following information: a. Item 38 (Record of Assignment) shows he served in the Republic of Vietnam from 16 February 1969 to 15 February 1970 and again from 12 August 1970 to 11 August 1971. b. Item 38 (Record of Assignments) shows he was assigned to the following units in Vietnam: * Company B, 1st Battalion, 12th Cavalry, 1st Air Cavalry Division from 23 February 1969 to 23 March 1969 * Company A, 1st Battalion, 12th Cavalry, 1st Air Cavalry Division from 24 March 1969 to 11 February 1970 * 13th Security Platoon, Detachment 1 from 18 August 1970 to 2 April 1971 * 13th Security Platoon, Detachment III from 3 April 1971 to 6 August 1971 c. Item 40 (Wounds) contains one entry showing he received a fragment wound to his back on 1 November 1969. d. Item 41 (Awards and Decorations) shows only one award of the Purple Heart. 6. General Orders (GO) Number 13759, issued by Headquarters, 1st Cavalry Division (Airmobile), dated 3 November 1969, awarded him the Purple Heart (1st Award) for wounds he received in connection with military operations against a hostile force on 1 November 1969. 7. A DD Form 261 (Report of Investigation Line of Duty (LOD) and Misconduct Status), dated 30 November 1969, shows the applicant sustained a gunshot wound to his right foot due to the discharge of his weapon. The LOD Investigation found that the applicant "was negligent in the handling of his weapon…he was negligent in that he failed to have his safety on when he knew his weapon was loaded and chambered. He has stated that it was his habit to lean on his weapon in that manner and while fidgeting with his weapon, while talking, he caused the accidental discharge resulting in personal injury to himself… [enlisted member] was at the pick-up zone preparing for combat assault." The investigating officer found that he his injury was "Not In The Line of Duty – Not Due to Own Misconduct." The Appointing Authority and the Reviewing Authority approved the findings on 20 January 1970. 8. On 10 August 1970, the Adjutant General (TAG), by Order of the Secretary of the Army, disapproved the applicant's LOD status. The final determination was listed as "Not in Line of Duty – Due to Own Misconduct" based on the evidence that the applicant handled his weapon in a grossly negligent manner and with disregard for its dangerous qualities. 9. On 15 October 1970, the applicant was honorably released from active duty for immediate reenlistment on 16 October 1970. His DD Form 214 shows he received the Purple Heart (1st Award), and completed 2 years, 1 month, and 24 days of creditable active duty service during the covered period. 10. On 3 December 1974, the applicant was honorably released from active duty service. His DD Form 214 (Report of Separation from Active Duty) shows only one Purple Heart awarded. He completed 4 years, 1 month, and 18 days of credible active duty service during the period covered. 12. His record does not contain orders awarding him the Purple Heart (2nd Award). 13. The applicant’s name was listed on the Vietnam casualty roster a single time. This entry shows he was treated for wounds he received on 1 November 1969. 14. 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 and maintained by the U.S. Army Human Resources Command Awards and Decorations Branch – failed to reveal orders awarding him the Purple Heart (2nd Award). REFERENCES: 1. 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 record: a. Examples of enemy-related injuries which clearly justify award of the Purple Heart include injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; and injury caused by enemy placed mine. b. Examples of injuries or wounds which clearly do not justify award of the Purple Heart include 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. 2. Army Regulation 601-210, dated May 1968, paragraph 4-9b (Verification of citizenship), states aliens must present their Registration Card (IN Form 1-151) or documentary evidence issued by the U.S. Immigration and Naturalization Service attesting that the individual has been admitted to the U.S. for permanent residence. DISCUSSION: 1. The applicant contends that he should be awarded a Purple Heart (2nd Award) for accidentally shooting his foot because he was in a combat zone in Vietnam. He also states that that it was illegal for the military to have sent him to Vietnam because he was not a U.S. citizen. 2. The record shows the applicant voluntarily enlisted in the RA. As part of his application process to join the U.S. Army, he provided the proper authorities a copy of his alien registration number for enlistment purposes, which was approved under the governing regulations, authorizing his military service into the Army. 3. The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration, rather he or she is entitled to it upon meeting specific criteria. When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury. The fact that the applicant was participating in direct or indirect combat operations is a necessary prerequisite, but is not the sole justification for the award. a. The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record. b. Accidental wounding not related to or caused by enemy action and self-inflicted wounds are examples of injuries, which do not justify award of the Purple Heart. c. The evidence of record shows the applicant sustained a gunshot wound to the foot, from his own rifle on 30 November 1969. Pursuant to Army Regulation 600-8-22, his injury was not sustained in action against an enemy or as a result of hostile action. Furthermore, the TAG, by Order of the Secretary of the Army, made a final determination that his injury was "Not in Line of Duty – Due to Own Misconduct" due to his negligence. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004565 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004565 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2