ABCMR Memorandum of                                                               AC
Consideration (cont)

ABCMR Memorandum of                                                              AR2002078569
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          10 June 2003                    
	DOCKET NUMBER:  AR2002078569

	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
| Ms. Wanda L. Waller | | Analyst

  The following members, a quorum, were present:

| Mr. Samuel A. Crumpler | | Chairperson
| Ms. Shirley Powell | | Member
| Mr. John T. Meixell | | 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.

APPLICANT STATES:  In effect, that the gunshot wound and bullet located in the soft tissue of his left mid cervical region (neck) entitles him to award of the Purple Heart.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in the Memorandum of Consideration prepared to reflect the Board's previous consideration of the Docket Number AR2001064441 by the Army Board for Correction of Military Records (ABCMR) on 4 April 2002.

The applicant provided a medical record, dated 7 November 2001, from the Department of Veterans Affairs.  This medical record states, in pertinent part, "Reports wounded in the neck and still has a bullet in his neck.  Denies being unconscious with that wound."

The applicant provided a medical record, dated 30 July 2001, from a civilian physician.  This medical record states, in pertinent part, "Incidentally noted is the presence of a .22 caliber slug in the soft tissues of the left mid cervical region."

The applicant provided an eyewitness statement, dated 22 September 2001, from a fellow soldier at the time in question.  This soldier attests that the applicant was hit in the neck by small arms fire in April 1969 in Vietnam.  He also states that the applicant received medical attention for this injury. 

This is the second eyewitness statement provided by the same fellow soldier.  He previously provided an eyewitness statement, dated 25 July 2001, which was considered by the ABCMR on 4 April 2002.  The Board notes that the eyewitness statement, dated 25 July 2001, states that the applicant sustained a head injury after he became "entrapped" in a helicopter and struck his head on the landing skid before ultimately falling to the ground "unconscious and bleeding."     

The applicant’s submissions are new evidence which will be considered by the Board.

There is no evidence in the available records which shows the applicant was awarded the Purple Heart or was wounded as a result of hostile action in Vietnam.

The applicant's name does not appear on the Vietnam Casualty Roster.

Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound 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, and the medical treatment must have been made a matter of official record.

Army Regulation 15-185 (Army Board for Correction of Military Records) 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.

Army Regulation 15-185 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.

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 noted the medical records provided in support of the applicant's claim for award of the Purple Heart.  However, these medical records do not show that the applicant was wounded as a result of hostile action in Vietnam. 

2.  The Board also noted the eyewitness statement, dated 22 September 2001, provided in support of the applicant's claim for award of the Purple Heart.  However, in the absence of orders or other evidence of record showing the applicant was wounded or treated for wounds as a result of hostile action in Vietnam, the Board determined that this statement is not sufficient as a basis for award of the Purple Heart.        

3.  After review of all the evidence in this case and the latest submissions, this Board also concluded the applicant has presented no argument or evidence which is sufficient to reverse the previous decision rendered by the ABCMR in Docket Number AR2001064441 on 4 April 2002.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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

SAC____  SP_____  JTM_____  DENY APPLICATION

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

INDEX

CASE ID | AR2002078569
SUFFIX |
RECON | Yes
DATE BOARDED | 20030610
TYPE OF DISCHARGE |
DATE OF DISCHARGE |
DISCHARGE AUTHORITY |
DISCHARGE REASON |
BOARD DECISION | DENY
REVIEW AUTHORITY |
ISSUES         1. | 107.0015
2. |
3. |
4. |
5. |
6. |