BOARD DATE: 25 July 2018 DOCKET NUMBER: AR20170002140 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: 25 July 2018 DOCKET NUMBER: AR20170002140 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: 25 July 2018 DOCKET NUMBER: AR20170002140 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. 2. The applicant states: a. He is requesting to be considered for award of the Purple Heart for injuries he sustained while deployed to Vietnam. He is including a New York Times article which details a 1968 helicopter crash that was caused by "friendly fire" where all aboard were ultimately awarded the Purple Heart. He believes that his circumstances are closely related to that article and he should receive consideration for award of the Purple Heart. He knew that his injuries from Vietnam were caused by a "friendly fire" incident and because of that he was not eligible for the Purple Heart. After seeing the aforementioned article, he thought he should submit a request. b. During his first tour on the night of 9 August 1968, he was wounded by friendly fire from a M-60 machine gun. There was a pipeline that transported different types of fuel from Qui Nhon to An Khe to Pleiku. Each of the five pump stations were manned by between 30 to 40 Soldiers. On 9 August 1968, he volunteered to go on a sweep through the wood line after dark to ensure it was clear of any enemy troops. They left at dusk and proceeded to the wood line which was about 100 meters from their perimeter. They had completed the sweep in about 2 hours and then started back toward their station. They were about 25 meters from their perimeter when firing began. As soon as he heard he fire, he either fell or was knocked to the ground immediately. c. He loss consciousness for a few seconds and when he opened his eyes he could not find his M-16 rifle. His head was hurting badly and he thought he must have hit his head on the ground when he first went down. He still did not realize that he had been hit by the gun fire. When the firing had stopped, the company Soldiers ran out to assist them and carried them back into the compound. He and two other Soldiers were medically evaluated to the Air Force Hospital at Camp Holloway in Pleiku. All three of them underwent surgery. d. The physician working on him told him that he had been hit by a bullet and it had chipped parts in his skull that would have to be dug out of the wound. He was told that he was lucky to be alive. His head was wrapped with bandages and he was placed in a ward in the hospital. Two weeks later his stiches were removed and he was returned to the pump station to continue his tour of duty. He was told that because it was friendly fire he would not be receiving the Purple Heart. e. Recently, a friend sent him an article reporting about the Purple Heart being awarded to three Marines for friendly fire that had happened during the Vietnam War. He began to think maybe he and the two other Soldiers might also qualify for this honor. 3. The applicant provides the following: * DA Form 8-273-3 (Clinical Record Cover Sheet) * Standard Forms (SF): * 502 (Clinical Record – Narrative Summary) * 504 (Clinical Record – History – Part I) * 505 (Clinical Record – History – Parts 2 and 3) * 506 (Clinical Record – Physical Examination) * 509 (Clinical Record – Doctor's Progress Notes) * 511 (Clinical Record – Temperature-Pulse-Respiration) * DA Form 2173 (Statement of Medical Examination and Duty Status) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * New York Times article 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 2. The applicant enlisted in the Regular Army on 21 December 1967 and he held military occupational specialty 76W (Petrol Storage Specialist). He served in Vietnam from 21 May 1968 to 20 May 1969. 3. His records contain and he provides the following: a. A DA From 8-275-3 stating he was admitted to the hospital after sustaining a gunshot wound to the right parietal region of his skull on 9 August 1968 in Vietnam. The diagnosis stated he was fired upon by mistake by his own company sentinel. b. SFs 502, 503, 504, 505, 506, 509, and 511, showing he received medical treatment from 9 August to 18 August 1968 for a non-penetrating gunshot wound to the right parietal area. c. A DA Form 2173, dated 29 August 1968, showing he was injured by friendly forces rifle missile on 9 August 1968, in Vietnam. The form noted he was injured while performing duty of checking the pump station perimeter for signs of enemy tampering. 4. He again served in Vietnam from 21 January to on or about 16 November 1970. 5. He was honorably released from active duty on 16 November 1970. His DD Form 214 shows he completed 2 years, 10 months, and 26 days of active service. His DD Form 214 also shows he was awarded and authorized the: * National Defense Service Medal * Vietnam Service Medal * Vietnam Campaign Medal * Air Medal with "V" Device * Army Commendation Medal * Bronze Star Medal with "V" Device 6. His DA Form 20 (Enlisted Qualification Record) shows in: * Item 40 (Wounds) – No entry to indicate he was wounded during his military service * Item 41 (Awards and Decoration) – No entry for the Purple Heart 7. His name is not listed in the Vietnam casualty roster. 8. He also provides a New York Times article, originally published on 14 March 2015, pertaining to the Marines reversing its previous decisions and approving the Purple Heart for the Marines who had been aboard the 1968 helicopter crash in Vietnam caused by friendly fire. The article stated the helicopter was carrying supplies to troops in battle when an American howitzer accidentally shot the aircraft down. Three Marines were killed. The copilot was the only survivor and he was told victims of so-called "friendly fire" were excluded from award of the Purple Heart. A change to the law in 1993 granted eligibility to those who had been wounded by American ordnance intended to cause an enemy harm. REFERENCES: 1. Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards. The regulation states the Purple Heart is awarded 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. The wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record. There are numerous examples of injuries or wounds which clearly do not justify award of the Purple Heart. Among the examples include accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; hearing loss and tinnitus; abrasions and lacerations (unless of a severity to be incapacitating); bruises (unless a direct impact of enemy weapons and severe enough to require treatment by a medical officer); soft tissue injuries and first degree burns. 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." DISCUSSION: 1. The criteria for award of 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 treatment by medical personnel, and the medical treatment must have been made a matter of official record. The Purple Heart may also be awarded 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. 2. The evidence of records shows the applicant was fired upon by mistake by his own company sentinel when returning from a sweep. There is no evidence, the sentinel was directly engaging the enemy at the time the rifle fire hit the applicant. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170002140 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170002140 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2