BOARD DATE: 6 June 2018 DOCKET NUMBER: AR20160014475 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: 6 June 2018 DOCKET NUMBER: AR20160014475 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: 6 June 2018 DOCKET NUMBER: AR20160014475 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 award of the Purple Heart due to a gunshot injury he received while serving in Vietnam. 2. The applicant states award of the Purple Heart was never requested for his injury. 3. The applicant provides page 2 of his Standard Form 89 (Report of Medical History), dated 20 July 1967, and page 2 of his Standard Form 88 (Report of Medical Examination), dated 20 July 1967. 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 into the Army of the United States on 22 September 1965 for a period of 2 years. 3. His DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from 18 April 1966 to 24 November 1966 while assigned to Company A, 1st Battalion (Airborne), 503d Infantry Regiment, 173d Airborne Brigade, 2d Infantry Division. 4. His records contain a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 15 October 1966, showing he was admitted to the 3d Surgical Hospital (Mobile Army) on 5 October 1966 for a gunshot wound in his abdomen. His commander noted a formal investigation was conducted by the unit executive officer. 5. His records contain a DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status), dated 20 October 1966, showing the findings of an investigation into the facts and circumstances regarding his injury. a. The investigating officer noted: (1) On the evening of 5 October 1966, the applicant was assigned as a company guard for the tent containing the troops' personal valuables, which stood adjacent to the Company A, 1st Battalion (Airborne), 503d Infantry Regiment's Enlisted Men's Club located at Bien Hoa, Republic of Vietnam. (2) After finishing his tour of duty at 2100 hours, the applicant went next door to the Enlisted Men's Club to return his weapon, a .45 caliber pistol, to Private First Class (PFC) R____ E. T____, to which it belonged. PFC T____ placed the weapon behind the bar until his guard duty was to begin at 2230 hours. (3) At approximately 2225 hours, PFC T____ went behind the bar and secured his weapon. The applicant was also behind the bar, playing with a pocket knife. As PFC T____ was clearing his loaded pistol, the applicant accidentally stuck PFC T____ in the wrist with his knife, which caused PFC T____ to jerk and discharge his weapon. The bullet struck the applicant in the lower abdomen. b. The investigator concluded: (1) In his considered opinion, the incident was entirely accidental. (2) There was no evidence of an argument between the two men, nor was there any evidence of drinking. (3) The applicant was not interviewed because he was evacuated for treatment of his injury. c. The investigation included the sworn statements of PFC R____ E. T____, who fired the weapon, and two other Soldiers, PFC R____ E. W____ and PFC D____ E. A____, who were in the club at the time of the incident. (1) PFC T____ stated that while at the bar, the applicant accidentally stabbed him with a pocket knife when he was clearing his weapon in preparation for guard duty. This caused him to jerk and accidentally fire his .45 caliber weapon, which struck the applicant in the stomach. He also stated he did not know the pistol had a round in the chamber. (2) PFC W____ said he was in the back of the Enlisted Men's Club and had not heard the Soldiers arguing before the incident. PFC A____ said he was standing near the bar in the Enlisted Men's Club and believed the shooting was an accident, both Soldiers were good friends and had not been arguing prior to the incident. 6. He submitted partial copies of his Standard Form 88 and Standard Form 89, dated 20 July 1967, showing a record of his abdominal wound. 7. His complete medical records are not available for review. 8. He was honorably released from active duty on 10 August 1967. 9. The applicant's name is not shown on the Vietnam casualty roster, a battle and non-battle listing of Soldiers who were killed, wounded, sick, captured, or missing during their service in Vietnam. REFERENCES: Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is an entitlement and differs from all other awards. 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, not merely examination, by a medical officer, and the medical treatment must have been documented in the service member's medical and/or health record. Award of the Purple Heart may be made for wounds treated by a medical professional other than a medical officer provided a medical officer includes a statement in the service member's medical record that the extent of the wounds was such that they would have required treatment by a medical officer if one had been available to treat them. The key issue commanders must take into consideration when contemplating an award of this decoration is the degree to which the enemy caused the injury. The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award. 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 trap or mine * injury caused by enemy-released chemical, biological, or nuclear agent * injury caused by vehicle or aircraft accident resulting from enemy fire * concussion injuries caused as a result of enemy-generated explosions * mild traumatic brain injury or concussion severe enough to cause either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the concussive incident b.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: * frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951) * trench foot or immersion foot * 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 disorder * airborne (for example, parachute/jump) injuries not caused by enemy action * hearing loss and tinnitus (for example, ringing in the ears) * mild traumatic brain injury or concussions that do not either result in loss of consciousness or restriction from full duty for a period greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function * abrasions and lacerations (unless of a severity to be incapacitating) * bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer) * soft tissue injuries (for example, ligament, tendon, or muscle strains, sprains, and so forth) * first degree burns DISCUSSION: 1. The evidence of record shows the applicant was accidentally injured by the discharge of .45 caliber pistol fired by another Soldier. 2. His accidental injury does not meet the eligibility criteria for award of the Purple Heart. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160014475 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160014475 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2