MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:          22 October 2002                   
	DOCKET NUMBER:  AR2002076103

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. Elzey J. Arledge, Jr.		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
		 records
	Exhibit B - Military Personnel Records (including
		 advisory opinion, if any)

APPLICANT REQUESTS:  Reconsideration of his earlier appeal to correct his  military records by awarding him the Purple Heart (PH), and adding that decoration to his DD Form 214. 

APPLICANT STATES:  In effect, that he has submitted new evidence which warrants the Board to reconsider his case.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records, which were summarized in a memorandum, prepared to reflect the Board's previous consideration of the case (AR1999032127) on 22 December 1999.  

In support of his request for reconsideration the applicant submits a statement from an individual who identifies himself as the medic of the platoon the applicant was assigned to in Vietnam.  The former medic states that after an attacking force was driven back, he carried a wounded soldier up a hill so he could be evacuated to a hospital.  After the soldier was evacuated, he discovered there was another casualty, the applicant.  The applicant's arms were burned and required application of ointment and bandaging.  He completed a medical field card on the applicant's burn and sent it to the battalion aid station.

The statement submitted by the applicant is new evidence that requires Board consideration.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision.  

If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for wounds sustained 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 a medical officer, and the medical treatment must have been made a matter of official record.

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 individual's 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.  Individuals wounded or killed as a result of “friendly fire” in the “heat of battle” will be awarded the Purple Heart as long as the “friendly” projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board will accept the medic's statement as evidence that the applicant was treated for burns he incurred as a result of coming into contact with hot shell casings from a friendly machine gun.
 
2.  Since the burn was not a result of hostile action, he was not entitled to the PH at that time.

3.  Since wounds incurred as a result of friendly fire are now authorized the award of the PH, as a result of Department of Defense Appropriations Act for fiscal year 1994, the Board must now consider whether the applicant's burns qualify under this legislation.  In this regard, the applicant has furnished a witness who apparently treated him for burns at the time.  The witness however, was not actually present to observe how and when the burns were received, thus he is unable to state that the burns were sustained while the applicant was engaged with the enemy.  In the absence of a treatment record and/or other evidence showing that his wounds were a result of contact with the enemy, there are insufficient grounds for the Board to award the Purple Heart.

4.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___fne___  ___slp __  ___ela __  DENY APPLICATION

	Carl W. S. Chun
    Director, Army Board for Correction 
	of Military Records

INDEX

CASE ID	AR2002076103	
SUFFIX		
RECON		
DATE BOARDED	20021022	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES         1.	107.00	
2.		
3.		
4.		
5.		
6.