MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 18 June 2002
         DOCKET NUMBER: AR2002070939

         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
M .		Analyst

The following members, a quorum, were present:

Ms. Karol A. Kennedy .		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Allen L. Raub		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 request for award of two Purple Hearts.

APPLICANT STATES: In a letter of explanation, dated 28 February 2001, that he is again writing in regard to Purple Hearts which he never received. He stated that the statements by his parents and two sisters was discounted because they were not doctors. He contends that his “other evidence” is a soldier [name omitted] who served with him.

The applicant then describes the first incident on 30 July 1970 wherein he contends that he sustained a shrapnel wound to the left side of his head. He further states that he was treated in the field and was put in for the Purple Heart. The applicant states that a fellow soldier, Private [name omitted] also put him in for the Purple Heart and that the fellow soldier was subsequently killed in action.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in Memoranda of Consideration reflecting previous decisions by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC96-10112 on 12 February 1997, in Docket Number AC96-10112A on 19 August 1998, and in Docket Number AR2000042079 on 18 January 2001.

In support of his request for reconsideration, the applicant submitted a letter of explanation, dated 28 February 2002; a 28 February 2002 letter to a Member of Congress;, a 17 June 1971 memorandum signed by the applicant’s unit commander at Fort Hood, Texas; a 14 June 1971 certificate by an officer in the applicant’s unit at Fort Hood, Texas; and a notarized document, dated 2-01-01, written by a former soldier who states that he served with the applicant in Vietnam and at Fort Hood, Texas.

The 28 February 2002 letter to the Member of Congress merely states that he has written to her “a couple of times” regarding the Purple Hearts he never received and he is again writing to the Army. This document presents no evidence relevant to the case under consideration.

The 17 June 1971 memorandum and the 14 June 1971 certificate submitted by the applicant were present among the records considered by the ABCMR in Docket Number AC96-10112 on 12 February 1997, in Docket Number
AC96-10112A on 19 August 1998, and in Docket Number AR2000042079 on 18 January 2001. Therefore, these documents are not new evidence.

The statement prepared by the fellow soldier, dated 2-01-01, was not previously considered by the ABCMR and is therefore new evidence which will be considered by the Board.

Records show that the applicant was inducted on 25 June 1969 and served as an infantryman in Vietnam from January 1970 to September 1970.

A DA Form 8-275-3 (Clinical Record Cover Sheet) shows that the applicant was admitted on 22 August 1970 to the 91st Evacuation hospital at Chu Lai, Vietnam, based on the diagnosis of “Osteoid osteoma (R) calcaulor” [a benign tumor composed of bone tissue and atypical bone (right foot).

Medical records further indicate that this bony projection on his right foot impaired the applicant’s ability to walk and resulted in his evacuation from Vietnam on or about 3 September 1970 to the 249th General Hospital with further evacuation to Beaumont Army Hospital at El Paso, Texas. Ultimately, the applicant was assigned to Fort Hood, Texas, on 6 November 1970. Records show the bony projection was surgically removed from his foot in March 1971.

The applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was honorably discharged from active duty on 24 June 1971 upon the expiration of his term of service.

The fellow soldier wrote in his statement of support that he visited the applicant “while in the hospital in Chu Lai, Vietnam for wounds received on chest and eye.” The fellow soldier also stated that he visited the applicant at the hospital in Beaumont, Texas, while on leave from Vietnam and again when he was assigned with applicant at Fort Hood, Texas. He further states that “this all took place in the years of 69 to 71 before ETS [expiration of term of service].” The fellow soldier further wrote: “Also his foot was the size of a melon.”

There are no orders in the applicant’s service personnel records which show he was awarded the Purple Heart. There is no evidence in the applicant’s service personnel records, his service medical records or Department of Veterans Affairs (DVA) medical records which show that he was wounded or treated for wounds as a result of hostile action during his service in Vietnam. The applicant’s name is not listed on the Vietnam Casualty Roster

The applicant’s DA Form 20 (Enlisted Qualification Record) does not contain an entry in item 40 (Wounds) or list the Purple Heart in item 41 (Awards and Decorations). The applicant signed his DD Form 214 at the time of his separation from the Army, and his DD Form 214 does not show the Purple Heart as an authorized award.

The applicant’s separation medical examination, which was conducted on 12 May 1971 makes no reference to wounds sustained in Vietnam, but does refer to the surgical removal of the bony projection from the applicant’s right foot.


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, 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 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.

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 service personnel records, service medical records and Department of Veterans Affairs (DVA) medical records and rating decisions provide no evidence that he was wounded or treated for wounds as a result of hostile action during his service in Vietnam from January to September 1970.

2. Medical evidence of record shows that the applicant was admitted to the military hospital at Chu Lai, Vietnam, and subsequently evacuated from Vietnam to the United States, due to a bony projection on his right foot which impaired his ability to walk.

3. The Board reviewed the statement by the fellow soldier who asserted that he visited the applicant in the hospital at Chu Lai, Vietnam, where the applicant was hospitalized for “wounds received on chest and eye” and again saw the applicant for the “same injuries at Fort Hood Hospital.”

4. Based on the foregoing, the Board concluded that, in view of the evidence contained in medical records prepared in August and September 1970, the statement made by the fellow soldier in February 2001 is not sufficient as a basis for award of the Purple Heart in this case.

5. After review of all the evidence in this case and the latest submission, this Board also concluded the applicant has presented no argument or evidence which is sufficient to reverse the previous decisions rendered by the ABCMR in Docket Number AC96-10112 on 12 February 1997, in Docket Number
AC96-10112 A on 19 August 1998, and in Docket Number AR2000042079 on 18 January 2001.

7. 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.

NOTE :

BOARD VOTE :

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__MHM__ __ALR___ __KAK__ DENY APPLICATION



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

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INDEX

CASE ID	AR2002070939
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020618
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	MR CHUN
ISSUES 1.	107.0015.0000
2.
3.
4.
5.
6.