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ARMY | BCMR | CY2001 | 2001058483C070421
Original file (2001058483C070421.rtf) Auto-classification: Denied

MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
                                   
        
        
         BOARD DATE: 26 February 2002
         DOCKET NUMBER: AR2001058483


         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. Antoinette Farley Analyst

The following members, a quorum, were present:

Ms. JoAnn H. Langston Chairperson
Mr. Raymond J. Wagner Member
Mr. Richard T. Dunbar 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 : In effect that his military records be corrected to show he was awarded the Purple Heart (PH).

APPLICANT STATES : In essence, that the military stated he was hospitalized at the 85 th Evacuation Hospital and he claims he was never there. He claims that, records belonging to another soldier with the same name were included in his military file. This information, he feels, incorrectly shows he was hospitalized at the 85 th Evacuation Hospital, instead of the 67 th Evacuation Hospital. He states, that while stationed in the Republic of Vietnam (RVN) he was attached to the
26th Signal Battalion, in Sharang Valley. He further states, after arriving there his unit was sent up north for a landing zone uplift, in order to keep communications for the 173 rd Airborne. He maintains, it was during this move he was wound, when his small convoy incurred enemy fire. He also contends that his name is not shown on the casualty roster, because his unit, upon arriving at the 173 rd Airborne, was improperly attached to that unit.

NEW EVIDENCE OR INFORMATION : Incorporated herein by reference are military records which were summarized as noted in the original Memorandum of Correction (MOC) prepared to reflect the Board's previous consideration of the case (AR2000048922) on 24 April 2001.

The applicant’s Official Military Personnel File was not available to the Board on 24 April 2001. The case was reviewed based on the documents provided by the applicant. The Military Personnel Record Jacket reflecting his career in the Army National Guard is now available.

The applicant’s submission and new evidence and argument requires Board consideration.

The applicant submits a 29 May 2001 letter of detailed explanation in support of his claim and a 22 March 1999 letter from the U.S. Total Army Personnel Command, Alexandria, Virginia (Military Awards Branch), which includes several pages of his medical record and another soldier’s medical documents, a 2 May 2001 denial response (MOC) from this Board, and an undated form copy from the Department of Veterans Affairs New York Regional Office, New York.

The applicant’s military records show on 5 April 1969, he was involved in an automobile accident and received medical treatment at a ROK hospital for an injury to his nose on 1 April 1969. It also shows that he was transported to the 67 th Evacuation Hospital and admitted for observation due to headaches. Additional entries to his record show that his vital signs were normal and stable, and that he had no loss of consciousness and was told to return for removal of his sutures within 2 days. His medical record makes no reference to treatment due to combat related injuries.

The applicant’s medical record shows he submitted a medical claim to the Veterans Administration for a ”face scar and/or (rash face)” he received treatment for in 1969.

The Vietnam Casualty list, does not show that the applicant received any combat wounds or injuries while he was in the RVN in April 1969.

A search of the unit’s historical files determined that his unit of assignment, the 26th Signal Battalion, was listed under the 1 st Signal Brigade, RVN. A records review for the period 29 December 1968 – 31 December 1969, shows that the 1 st Signal Brigade published 2,129 General Orders, of which 40 were published awarding the Purple Heart and the applicant’s name and service number was not among the recipients.

Army Regulation 600-8-22 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 by a medical officer, and the medical treatment must have been made a matter of official record.

Army Regulation 15-185 sets forth the policy and procedures for the Army Board for Correction of Military Records. 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.

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 applicant’s medical record shows that he was in an automobile accident, treated and released back to a duty status. The incident was never shown to be combat related, attributed to hostile action from the enemy or that he incurred a wound as a result. The applicant’s remaining medical records apply to his reserve duty. He never reported that the facial scar was the result of a combat related wound.

2. There is no evidence of record, and the applicant has provided no evidence, which shows that he was awarded the Purple Heart, that he was wounded in action on 1 April 1969, or that he underwent medical treatment for wounds received as a result of hostile action at any other time.

3. 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.

4. In view of the foregoing, there is no basis for granting the applicant's request other than to remove 8 pages of medical forms belonging to another individual, which were on file in his record in error.

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

__JHL___ __RJW _ ___RTD__ DENY APPLICATION




         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records



INDEX

CASE ID AR200105843
SUFFIX
RECON
DATE BOARDED 20020226
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION DENY
REVIEW AUTHORITY
ISSUES 1. 111.00
2.
3.
4.
5.
6.



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