IN THE CASE OF: BOARD DATE: 1 June 2023 DOCKET NUMBER: AR20220010888 APPLICANT REQUESTS: entitlement to award of the Purple Heart (PH) with first Oak Leaf Cluster (OLC). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 24 August 2022 * Self-authored Statement, 2 August 2022 * Exhibits A thru F which consist of the following documents: o Western Union Telegraph, 8 June 1968 o Clinical Record, 15 August 1968 o Letter of Appreciation, 11 July 1968 o DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), 28 March 1969 o Army Board for Correction of Military Records Proceedings, Case of (Applicant) (No Case Number), 10 March 1971 o U.S. Army Human Resources Command Letter, Awards and Decorations Branch, 11 March 2022 * Letter from WDR___, (Retired Master Sergeant), 3 September 1998 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect: a. He was awarded his first PH for injuries he sustained on 31 January 1968. He was injured again on 4 June 1968 and these injuries are well documented. b. At issue is whether or not injuries he sustained on 4 June 1968 were due to hostile enemy action or from destroying surplus ammunition. c. A telegram was sent to his spouse and released to newspapers that his injuries were sustained while destroying surplus ammunition, but this was not the case. He was a member of the Explosive Ordinance Disposal (EOD) team and while clearing ammunition from Camp Evans following a rocket attack, an item of ammunition in the armed condition exploded. This was the hostile enemy action. d. The Army Awards and Decorations Branch denied his request for a second PH because of the telegram in his records. 3. The applicant provides the following documents: a. A Western Union Telegraph, 8 June 1968, which shows his next of kin were notified that he was wounded by a secondary explosion while he was destroying surplus ammunition. He received multiple fragment wounds to both shoulders, both legs and to his head with skull and brain damage and blindness of the left eye. b. A memorandum, subject: Letter of Appreciation, dated 11 July 1968, for another Soldier, states MSG WDR___, 42nd Ordnance Detachment (EOD) was recognized for distinguishing himself at Camp Evans on 4 June 1968 when he dashed through a burn littered with hundreds of items of ammunition in the armed condition to reach the applicant, apply first aid, and help evacuate him from the area. The letter further reads that the ammunition supply point at Camp Evans, I Corps, burned and detonated following a rocket attack. The EOD team was dispatched to clear the hazardous ammunition from the ammunition supply point and the surrounding area. c. A clinical record, with a date of disposition of 15 August 1968, issued by Letterman General Hospital, San Francisco, shows the applicant received a penetrating missile fragment to his left shoulder and received leg wounds, which occurred on 4 June 1968, as the result of hostile force grenade fragments. The date of admission was 29 June 1968 d. His DD Form 214 shows he was honorably transferred to the U.S. Army Reserve on 28 March 1969. He completed 1 year, 11 months, and 29 days of net service this period. Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) reflects he received a PH (1st Award). e. Army Board for Correction of Military Records Proceedings, Case of (Applicant) (No Case Number), dated 10 March 1971, shows he was granted permanent disability retirement. f. A letter from MSG WDR___ to the applicant, dated 3 September 1998, reflects the MSG (Retired) asking the applicant if he received his PH. g. A letter issued to the applicant from AHRC, ADB, dated 11 March 2022, states: (1) “The statutory and regulatory criteria governing the PH require it to be awarded to Soldiers who are wounded as a direct result of enemy action. The wound must have required treatment by a medical officer and been made a matter of official record. We specifically request military medical documentation from immediately after or close to the incident reflecting a diagnosis of and treatment for a qualifying wound. (2) Based upon review of the forwarded Western Union Telegram dated June 8, 1968, you were injured while destroying surplus ammunition and were wounded by a secondary explosion on June 4, 1968. In accordance with Army Regulation 600-8-22 (Military Awards), paragraph 2-8, the Purple Heart cannot be awarded for accidental injuries not directly caused by enemy action. As this report indicates the event was accidental in nature and your wounds were not the direct result of hostile action, we cannot authorize issuance of the Purple Heart for this incident.” 3. The applicant's records contain sufficient evidence to support additional corrections and awards not shown on his DD Form 214 and will be listed in administrative notes. 4. A review of the applicant's service records shows: a. On 30 March 1967, he was inducted into the Army of the United States. He was subsequently awarded military occupational specialty 55D (EOD Specialist). b. DA Form 20, item 38 (Record of Assignments) shows he was assigned to Headquarters and Headquarters Company, 3rd Ordnance Battalion (Ammo) in U.S. Army Pacific – Vietnam (USARPAC) from 9 January 1968 to 11 June 1968. c. General Orders Number 97, dated 7 February 1968, issued by Headquarters, U.S. Army Support Command, Saigon, awarded him the PH for wounds received in action on 31 January 1968. d. His records contain a copy of telex message sent by the Commanding General, 1st Logistics Command, Vietnam, states: * He was seriously wounded on 4 June 1968 and placed on the seriously ill (SI) List after admission to the U.S.S. Repose * His wounds consisted of multiple fragments to both shoulders, both legs, head/skull with brain damage and blindness of the left eye * He was destroying surplus ammunition and wounded by secondary explosion after he began investigating the area * His wounds were not the result of hostile fire e. A Western Union Telegram, 8 June 1968, sent by the Adjutant General, (TAG) Department of the Army (DA), notified his next of kin of his wounds received on 4 June 1968, and reads, in part, "He received multiple fragment wounds to both shoulders, both legs and the head with skull and brain damage, and blindness of the left eye. He was destroying surplus ammunition when wounded by secondary explosion after he began investigating the area. f. On 11 June 1968, the Commanding General, U.S. Army Vietnam, notified the Casualty Division, Department of the Army, the applicant was transferred to 249th General Hospital, Camp Drake, Japan on the same date. g. On the same date, TAG, DA, notified his kin by Western Union Telegram of his transfer to 249th General Hospital, Camp Drake, Japan. h. His DA Form 20 (Enlisted Qualification Record) shows no entries in item 40 (Wounds). i. On 28 March 1969, he was honorably released from active duty and transferred to the USAR, pursuant to Army Regulation 635-200, Chapter 2, Section VI due to expiration term of service. He was awarded or authorized: * National Defense Service Medal * Vietnam Service Medal * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) * Army Good Conduct Medal * Army Commendation Medal * Purple Heart j. On 10 March 1971, the ABCMR found that his records should be corrected to show he was retired by reason of physical disability. It further found: (1) That on 4 June 1968 the applicant incurred wounds resulting from hostile action while serving in the Republic of Vietnam; that he was treated on the United States Ship Repose and eventually transferred to Letterman General Hospital from where he was returned to duty on 16 August 1968; and that at the time of his discharge these diagnoses were recorded: * missile fragment wound, left shoulder * missile fragment wound, bilateral leg * left frontotemporal region of skull following craniectomy performed on 4 June 1968 * deafness right and left ears, due to acoustic trauma * hemorrhage in vitreous, left eye * hemorrhage subconjunctival, left eye * scar of retina, left eye, due to trauma (2) That on 18 February 1969 the applicant underwent a separation medical examination and it was recommended that he appear before a Physical Evaluation Board; that it was noted on the report of the foregoing medical examination that he had light perception only in the left eye and hearing loss; and that there is no record of a Physical Evaluation Board convened in his case. (3) That on 27 November 1970, the Surgeon General's Office, in a comment to this Board, expressed the opinion that the applicant was medically unfit under the provisions of paragraph 3-16e (2), Army Regulation (AR) 40-501, with light perception only in his left eye. (4) That on 2 February 1971 the United States Army Physical Disability Agency in further commenting on this case recommended, in effect, that the applicant be permanently retired from the service, 50% disabled. k. The Board concluded, in part, that the failure of the Department to properly evaluate the applicant, to find him physically unfit by reason of residuals of wounds incurred as the result of hostile action in the Republic of Vietnam; to relieve him from active duty by reason thereof and to permanently retire him, 50% disabled, was then, and is now, in error and unjust. l. The Board recommended that he was relieved from active duty on 28 March 1969 by reason of physical disability, with a 50% disability rating and permanently retired in the highest grade satisfactorily held, with entitlement to retired pay as of 29 March 1969 under the provisions of 10 U.S.C. 1201 and 1372. m. On 18 March 1971, TAG directed his records be corrected to show he was relieved from active duty on 28 March 1969 by reason of physical disability, rated 50% disability rating. 5. A review of the Vietnam casualty roster shows the applicant’s name is not listed as having been wounded (or injured) on either 31 January 1968 or on 4 June 1968. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board noted that the Western Union Telegram dated 8 June 1968, shows the applicant was injured while destroying surplus ammunition and were wounded by a secondary explosion on 4 June 1968. This injury does not meet the criteria for award of the Purple Heart since the Purple Heart cannot be awarded for accidental injuries not directly caused by enemy action. The Board agreed that the incident was accidental in nature and the wounds were not the direct result of hostile action. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X: X: X: DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: Except for the correction addressed in Administrative Note(s) below, the Board found 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. 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. ADMINISTRATIVE NOTE(S): A review of the applicant's records show his DD Form 214 should be amended without Board Action to show: * b. Item 24 (Awards): He was awarded or authorized the following awards: three additional bronze service stars to his previously-issued Vietnam Service Medal and the Republic of Vietnam Gallantry Cross with Palm Unit Citation * c. Item 30 (Remarks): "Service in Vietnam: 4 January 1968 to 4 July 1968." REFERENCES: 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. 2. 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 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. 3. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. It 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 a medical officer, 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: (1) Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action. (2) Injury caused by enemy-placed trap or mine. (3) Injury caused by enemy-released chemical, biological, or nuclear agent. (4) Injury caused by vehicle or aircraft accident resulting from enemy fire. (5) Concussion injuries caused as a result of enemy-generated explosions. (6) 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: (1) Frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951). (2) Trench foot or immersion foot. (3) Heat stroke. (4) Food poisoning not caused by enemy agents. (5) Chemical, biological, or nuclear agents not released by the enemy. (6) Battle fatigue. (7) Disease not directly caused by enemy agents. (8) Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action. (9) Self-inflicted wounds, except when in the heat of battle and not involving gross negligence. (10) Post traumatic stress disorders. (11) Airborne (for example, parachute/jump) injuries not caused by enemy action. (12) Hearing loss and tinnitus (for example: ringing in the ears). (13) 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. (14) Abrasions and lacerations (unless of a severity to be incapacitating). (15) Bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer) (16) Soft tissue injuries (for example, ligament, tendon or muscle strains, sprains, and so forth). (17) First degree burns. 4. U.S. Army Vietnam (USARV) Regulation 672-5-1 (Decorations and Awards), prescribed policies, responsibilities, and criteria for awards in order to insure prompt and proper recognition of individuals. The regulation states: a. The Purple Heart may be awarded to U.S. personnel who are wounded or killed in action as a direct result of enemy action. b. A wound for which the award is made must have required treatment by a medical officer and records of medical treatment for wounds or injuries received must have been made a matter of official record. c. Authority to award the Purple Heart was delegated to hospital commanders. Further, it directed that all personnel treated and released within 24 hours would be awarded the Purple Heart by the organization to which the individual was assigned. Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam would be awarded the Purple Heart directly by the hospital commander rendering treatment. 5. DA PAM 672-3 (Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register (January 1960 – February 1986)) shows the applicant completed service in Vietnam during the following campaigns: * Vietnam Counteroffensive, Phase III, 1 June 1967 – 29 January 1968 * TET Counteroffensive, 30 January 1968 – 1 April 1968 * Vietnam Counteroffensive, Phase IV, 2 April 1968 – 30 June 1968 6. Department of the Army General Orders Number 8, 19 March 1974, confirmed award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Military Assistance Command, and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters, U.S. Army Vietnam, and its subordinate units during the period 20 July 1965 to 28 March 1973. 7. Army Regulation 635-5 (Separation Documents), then in effect, prescribed the separation documents that would be furnished each individual who was separated from the Army including Active Duty Training personnel and established standardized procedures for the preparation and distribution of these documents. All available records would be used as a basis for the preparation of the DD Form 214, including DA Form 20, DA Form 66, and orders. a. Item 11c (Authority and Reason), enter the authority for transfer or discharge by reference to the appropriate regulation, circular, bulleting, special separation directive, statute, etc., followed by the SPN and descriptive reason for transfer or discharge. Examples: 'Section III, Army Regulation 135-173, SPN 513, Essentiality to National Interest," "10 U.S.C. 1201 or 1204, SPN 271, Retirement (Permanent Disability)," or "10 U.S.C. 3917, SPN 231, Retirement (30 years' Service)." b. In item 24, enter from item 21, DA Form 66 (Officer Qualification Record), or section 9, DA Form 20 (Enlisted Qualification Record) all decorations, service medals, campaign credits, and badges awarded or authorized, omitting authorities cited therein. c. In item 30 (Remarks) enter inclusive dates of service in Vietnam during current period of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220010888 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1