MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 12 September 2002
         DOCKET NUMBER: AR2002072337


         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. John N. Slone		Chairperson
Mr. Donald P. Hupman		Member
Mr. William D. Powers		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 he was setting up trip-flares around the perimeter of Company D, 3rd Battalion, 21st Infantry before nightfall. While setting up trip-flares, he was being shot at by a North Vietnamese sniper. In that he was being shot at by an enemy force, he could not get the trip-flare set up correctly, causing it to go off prematurely. In order to protect himself from the intense fire of the trip-flare, he pushed the trip-flare away from himself therefore sustaining the burn wound to his right palm.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in the Memorandum of Consideration prepared to reflect the consideration of Docket Number AR2001061723 by the Army Board for Correction of Military Records (ABCMR) on 29 January 2002.

The applicant submitted a letter, dated 27 March 2002, from the Director of the Iowa Commission of Veteran Affairs to a Member of Congress. In this letter, the Director contends that the ABCMR has not justly implemented Army Regulation 600-8-22 (Military Awards), paragraph 2-8, and the supporting information/documentation that was forwarded to the Board regarding the applicant. She points out that another veteran was awarded the Purple Heart by submitting Daily Staff Journal and Duty Officers Log Sheets in support of his claim. She also points out that there were no service medical records documenting medical treatment by a medical officer for the wound this veteran received, yet he was awarded the Purple Heart.

The applicant also submitted a rebuttal to the Memorandum of Consideration, dated 29 January 2002, wherein the ABCMR denied him award of the Purple Heart. The applicant disagrees with the Board’s determination that there is no evidence in his records that shows he was wounded or treated for wounds as a result of hostile action. He refers to the Standard Form 600 (Chronological Record of Medical Care), dated 31 January and 1 February 1971, for medical treatment of a "partial thickness burn palm of right hand" which he provided in his original application. He contends that this medical record lends support to his Statement in Support of Claim, dated 21 August 2001, which was also provided in his original application.

The applicant also contends that the following subparagraphs in Army Regulation 600-8-22 pertain to his request for award of the Purple Heart: paragraph 2-8a(1) In any action against an enemy of the United States; 2-8a(2) In any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged; 2-8a(4) As a result of an act of any such enemy of opposing armed forces; and 2-8a(5) As the result of any act of any hostile foreign force. He points out that nowhere in the four subparagraphs does it state "hostile action" as previously specified in the Memorandum of Consideration.

The applicant further contends that his injury is similar to two examples of enemy-related injuries which clearly justify award of the Purple Heart shown in Army Regulation 600-8-22.

The applicant also contends that the medical treatment he received on
31 January and on 1 February 1971 substantiates and supports his Statement in Support of Claim, dated 21 August 2001.

The applicant provided copies of Daily Staff Journal and Duty Officers Log Sheets for the period 27 January 1971 to 31 January 1971. However, the applicant’s rebuttal indicates that this documentation was previously considered by the ABCMR on 29 January 2002.

The letter from the Director of the Commission of Veteran Affairs and the applicant’s rebuttal are new evidence which will be considered by the Board.

The Standard Form 600 (Chronological Record of Medical Care), dated
31 January and 1 February 1971, shows the applicant received medical treatment for a partial thickness burn to the palm of his right hand. However, this medical record does not show that this injury was incurred as a result of hostile action.

Evidence of record shows that on 23 August 1971 the applicant underwent a separation physical examination which makes no mention of any wounds sustained as a result of hostile action.

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 (Army Board for Correction of Military Records) sets forth the policy and procedures for the ABCMR. It provides that, if a request for 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 that was not in the record at the time of the Board’s prior consideration. This includes but is not limited to any facts or arguments as to why relief should be granted. 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 one 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 statement by the Director of the Iowa Commission of Veteran Affairs that another individual was awarded the Purple Heart based on Daily Staff Journal and Duty Officers Log Sheets and not service medical records. However, the ABCMR considers each case individually and on its own merit and renders decisions based on the unique facts and circumstances of each particular case. Therefore, a decision by the ABCMR in a previous case is not a basis for granting relief in a case currently under consideration.

2. The Standard Form 600 provided in support of the applicant’s claim shows only that he was treated for a burn to his right palm. This medical record does not show the circumstances or the causative agent of his injury. Specifically, this medical record does not show that he sustained this injury as a result of action by enemy forces, that he was engaged at the time with opposing enemy forces, that he was engaged in ground combat against an enemy at the time of his injury, or that his injury was the result of an act by any hostile force.

3. The Board considered the applicant’s arguments in regard to paragraphs
2-8a(1), 2-8a(2), 2-8a(4) and 2-8a(5) of Army Regulation 600-8-22 as they pertain to his request for award of the Purple Heart. In reviewing these contentions, the Board determined that the applicant has not provided any records or other proof which shows that he was "in action against an enemy of the United States" [reference paragraph 2-8a(1)] at the time he sustained a burn to the palm of his right hand. The Board determined that there is no proof that at the time the applicant was burned that he was "In any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged" [reference paragraph 2-8a(2)]. The Board determined that there is no official record or any proof that the burn to the applicant’s palm was "As a result of an act of any such enemy of opposing armed forces" [reference paragraph 2-8a(4)]. The Board also determined that there is no evidence or other proof that the applicant sustained a burn to his palm "As the result of any act of any hostile foreign force" [reference paragraph 2-8a(5)].

4. Notwithstanding the opinion of the Director of the Commission of Veteran Affairs that the ABCMR "has not justly implemented Army Regulation 600-8-22, Paragraph 2-8, and the supporting information/documentation" in the applicant’s case, the specific requirements for award of the Purple Heart are clear. Evidence of wounds or injuries resulting from action with hostile forces as described in paragraph 2-8a(1) through (7) is required. Paragraph 8-2b(2) further requires treatment of those wounds or injuries sustained in action against the enemy and a record of such treatment. In the absence of such evidence, there is no basis for award of the Purple Heart.

5. The Board considered the applicant’s contention that his injury is similar to two examples of enemy-related injuries which clearly justify award of the Purple Heart as specified in Army Regulation 600-8-22. However, there is no evidence of record available to the Board which shows that the applicant sustained an enemy-related injury.

6. The Board also considered the Daily Staff Journal and Duty Log Sheets provided in support of his claim for award of the Purple Heart. However, this documentation does not identify the applicant by name as a casualty, does not show that he was engaged in action against the enemy, and does not show that he was wounded or injured as a result of hostile action.

7. After review of all the evidence in this case and the latest submissions, this Board also determined that the applicant has presented no argument or evidence which is sufficient to reverse the previous decision of the ABCMR rendered on 29 January 2002 in Docket Number AR2001061723.

8. Further, this Board also determined, after review of all the evidence in this case, that there is insufficient evidence upon which to base award of the Purple Heart at this time.

9. 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 either requirement.
10. 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

JNS____ DPH_____ WDP____ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2002072337
SUFFIX
RECON	Yes
DATE BOARDED	20020912
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	107.0015
2.
3.
4.
5.
6.