MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 11 March 2003
         DOCKET NUMBER: AR2002078530


         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
Mr. Ted S. Kanamine		Member
Ms. Shirley Powell		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 received combat wounds that qualify for 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 AR2001065666 by the Army Board for Correction of Military Records (ABCMR) on 14 February 2002.

The applicant provided an eyewitness statement, dated 10 September 2001, from his platoon leader at the time in question. He also provided a Letter of Recommendation for the platoon leader, dated 1 July 1970. However, this evidence was previously considered by the ABCMR on 14 February 2002.

The applicant provided a personal account of his wounding, dated 5 June 2002. He contends, in effect, that during a mission to pick up a patrol that was under heavy enemy fire he sustained a shrapnel wound to his neck. He contends that he was treated at his aircraft, that a piece of shrapnel was extracted from his neck and that the wound was bandaged. He also contends that medical care was often informal and undocumented in forward combat areas.

The applicant provided an addendum, dated 13 June 2002, to the eyewitness statement provided by his former platoon leader in 2001. In this addendum, the former platoon leader attests that he was the applicant's platoon leader at the time of his wounding, that he was physically present at the time of the applicant's wounding by enemy ground fire, and that he personally saw the wound as the applicant received field medical treatment. He also states that he can attest to the accuracy of the applicant's 5 June 2002 statement that he received field care at a forward operational Special Forces camp airstrip that would not likely have generated any paperwork for their unit. He reiterates that the applicant is the pilot referenced as being wounded in his Letter of Commendation provided in the applicant's original application.

The applicant also provided an eyewitness statement, dated 6 August 2002, from a gun ship pilot at the time in question. He states that he witnessed the applicant set his helicopter down, in an area where the enemy had set up a firing field in front of the flight path, to pick up a Special Forces team that had been compromised. He states that the applicant's aircraft received fire while the soldiers were loading; however, the applicant remained calm and waited until his load was on board to take off. The gun ship pilot states that later that night he noticed a bandage on the neck of the applicant and learned that he had "caught a piece of shrapnel" during the engagement.
The applicant’s personal account of his wounding, the addendum and the eyewitness statement from the gun ship pilot are new evidence which will be considered by the Board.

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 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 Board reviewed the eyewitness statements provided in support of his 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 these statements are not sufficient as a basis for award of the Purple Heart.

2. 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 AR2001065666 on 14 February 2002.

3. 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 in this case.

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___ TSK_____ SP______ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2002078530
SUFFIX
RECON	Yes
DATE BOARDED	20030311
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	107.0015
2.
3.
4.
5.
6.