MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 29 May 2003
         DOCKET NUMBER: AR2002081117


         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. Luther L. Santiful		Chairperson
Mr. Lester Echols		Member
Mr. Frank C. Jones		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 additional awards of the Purple Heart.

APPLICANT STATES: In effect, that he received five separate hostile fire injuries on 14 February 1968 in Vietnam. He contends that he received two separate injuries from enemy B-40 rocket propelled grenade and other fragments and three separate enemy AK-47 bullet wounds. He also contends that he received his first award of the Purple Heart while still a patient recovering from multiple wounds received on 14 February 1968, as evidenced by hospital general orders. He contends that the Army Board for Correction of Military Records (ABCMR) awarded him a second award of the Purple Heart for a separate bullet wound to his head on 14 February 1968.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a Memorandum of Consideration prepared to reflect the consideration of Docket Number AC97-10125 by the Army Board for Correction of Military Records (ABCMR) on 24 December 1997.

On 8 December 1999, a request for reconsideration was reviewed by the ABCMR in Docket Number AR1999022754 and partial relief was granted. The ABCMR awarded the applicant the Purple Heart with First Oak Leaf Cluster for wounds sustained in combat on 14 February 1968.

The applicant submits a letter requesting reconsideration, dated 22 October 2002, with three enclosures.

The applicant submits a Standard Form 513 (Clinical Record), dated
12 September 1975, which shows he was shot in February 1968 and subsequently had three pneumothoraces (an accumulation of air or gas in the pleural cavity).

The applicant provided a Veterans Administration Radiology Report, dated
5 September 2002. This report shows that the applicant had a history of a gunshot wound to his right shoulder with chronic pain.

The applicant provided a Veterans Administration medical record, dated
10 September 2002. This medical record shows the applicant sustained a bullet wound in Vietnam through his supraspinatus fossa (shoulder blade) which exited below the axilla (arm pit).

The applicant also provided an application for correction of his military records, dated 17 April 2003, which requests award of the Purple Heart for a right



chest/right lung injury from a bullet. He provided nine medical records (two clinical records, dated 18 March 1968; a health record, dated 7 December 1967; a clinical record cover sheet, dated 17 June 1969; a DA Form 2658 (Health Record - Abstract of Service), covering the period 17 November 1967 to 16 July 1969; and a medical record, dated 17 June 1970) in support of this application. The applicant also provided the same three medical records he provided with his letter requesting reconsideration, dated 22 October 2002.

The applicant provided a second application for correction of his military records, dated 17 April 2003, which requests award of the Purple Heart for a left arm/left chest fragment injury. He provided an eyewitness statement, dated 23 March 2003, from the Commanding Officer of Company C, 3rd Battalion, 22nd Infantry of the 25th Infantry Division, describing his first hostile fire wound on 14 February 1968. The Commanding Officer attests that on 14 February 1968 he observed the applicant's armored personnel carrier (APC) explode after being struck by an enemy B-40 rifle propelled grenade, that the applicant was catapulted from the APC, that the applicant did not appear to be seriously injured and that the applicant continued to engage the enemy. He states that after that engagement, he noticed the applicant was wounded in the upper left arm and chest area; however, the applicant reported that his wounds were not incapacitating and he continued to fight. The Commanding Officer goes on to state that later that evening, in a conversation with others, he learned that the applicant had been seriously wounded and evacuated to the United States for medical treatment. He certifies that the applicant was wounded by hostile enemy fire prior to his more serious wounds received on the same day.

The applicant also provided a Combat After Action Report, 3rd Battalion, 22nd Infantry Regiment, 25th Infantry Division, dated 30 April 1968; an excerpt titled, "History of 23d Infantry Regiment" from the 25th Infantry Division Association's Website; and a Standard Form 88 (Report of Medical Examination), dated
26 February 1969.

The applicant's submissions are new evidence and will be considered by the Board.

The applicant's DD Form 214 (Report of Separation from Active Duty), which was authenticated in his own hand, shows one award of the Purple Heart.

A DD Form 215 (Correction to DD Form 214) which was prepared on 1 May 2000 amended the applicant's DD Form 214 to show award of the Purple Heart with First Oak Leaf Cluster.




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. The bronze oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Purple Heart. Not more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion or agent.

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.

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 applicant's service medical records show that he sustained a gunshot wound to the face and multiple fragment wounds to the upper body and arms on 14 February 1968 in Vietnam.

2. The Board reviewed the medical records provided by the applicant in support of his claim for an additional award of the Purple Heart for a right shoulder/right chest/right lung bullet injury on 14 February 1968. The Board also noted the applicant's contention that the clinical record prepared over seven years after he was wounded as a result of hostile action, dated 12 September 1975, documents this bullet wound and states that he was shot in February 1968 in Vietnam and


subsequently had three pneumothoraces. However, the Board notes that the clinical record, dated 18 March 1968, prepared one month after the applicant was injured, shows he sustained a gunshot wound to his left cheek and states, in pertinent part, "He also sustained multiple fragment wounds to his chest and upper extremities with resultant right hemopneumothorax."

3. These medical records provided by the applicant merely show that he sustained a gunshot wound to the face and multiple fragment wounds to the upper body and arms on 14 February 1968 in Vietnam. Therefore, this Board determined from these records that the applicant sustained a gunshot wound and fragmentation wounds which have been recognized by two awards of the Purple Heart (Purple Heart with First Oak Leaf Cluster).

4. Notwithstanding the applicant's contention that he received five separate hostile fire injuries on 14 February 1968 in Vietnam, there are no records or medical evidence which shows that he sustained wounds on five different occasions on 14 February 1968.

5. The Board noted the eyewitness statement provided in support of the applicant's claim for an award of the Purple Heart for his first hostile fragment wound to his left arm and left chest on 14 February 1968. The Board also noted that the applicant has received an award of the Purple Heart for fragmentation wounds to his upper body.

6. While this witness statement confirms the applicant sustained wounds to his upper body, the author was not an eyewitness to any additional wounds sustained by the applicant; therefore, his statement does not provide a factual basis for any additional awards of the Purple Heart.

7. The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for this Board to amend the decisions of the ABCMR in Docket Number AC97-10125, dated 24 December 1997, or the ABCMR in Docket Number AR1999022754, dated 8 December 1999.

8. 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.

9. In view of the foregoing, there is no basis for granting the applicant's request for any additional awards of the Purple Heart.

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

LLS____ LE______ FCJ_____ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2002081117
SUFFIX
RECON	Yes
DATE BOARDED	20030529
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	107.0015
2.
3.
4.
5.
6.