MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 21 August 2003
         DOCKET NUMBER: AR2003085670

         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
Mr. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. John N. Sloan		Chairperson
Mr. Roger W. Able		Member
Ms. Regan K. Smith		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 appeals to correct his military records by awarding him the Purple Heart.

APPLICANT STATES: In effect, that he was injured during a rocket mortar attack on 18 February 1968 in Vietnam but he did not run to the dispensary at the time he injured his eye. The second time he injured his eye, which was on June 11th or 12th, he did go to the dispensary. He states that he was needed on the flight line during the rocket and mortar attack. He was 17 or 18 years old and did not know any better than to run where he was needed – in his gun ship. He adds that when he was discharged he did not want anything to get in his way so that he could go home.

He further states that his unit's operations report showed that on the morning at about 0200 hours, on 18 February 1968, they were hit with rockets and mortars. He dropped to the floor of wood planks and hit his left eye on a footlocker.

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 AC81-07502 on 13 January 1982; Memorandum of Consideration prepared to reflect the consideration of Docket Number AR1999027510 on 7 October 1999; and Docket Number AR2002076610 on 5 November 2002.

On 13 January 1982, the Army Board for Correction of Military Records (ABCMR) denied the applicant’s initial request for award of the Purple Heart due to lack of evidence and failure to timely file.

On 7 October 1999, the ABCMR denied the applicant’s request because the applicant had submitted the same medical evidence it had considered with his previous application and there was an absence of conclusive evidence or an eyewitness account that the injury resulted from combat related action.

On 5 November 2002, the ABCMR denied the applicant’s request for reconsideration for award of the Purple Heart due to a lack of evidence that showed that the applicant was wounded or treated for wounds as a result of hostile action. During consideration of the request for reconsideration, the Board noted the unit operations report, provided by the applicant in support of his claim for the Purple Heart, did not identify the applicant by name as a casualty and did not show that he was wounded or injured as a result of hostile action.

The applicant provided two letters, dated 7 October 1997 and 6 January 1998 from ophthalmologists and an undated personal statement. However, this documentation was previously considered by the ABCMR on 7 October 1999.

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The applicant also submitted a letter of transmittal from the Department of Veterans Affairs, Regional Office, San Diego, California, dated 18 November 2002, with a copy of a three page Compensation and Pension Exam Report dated 22 April 1998, and two pages of a three page VA Form 21-Test, Application for Reopened Compensation Claim, dated 25 February 1998. The Board did not previously consider this submission; therefore, it is new evidence, which will be considered by the Board.

The Compensation and Pension Exam Report dated 22 April 1998, in the Medical History Section shows: the applicant volunteered that he had a blow to the left eye at age 6 and that the eye may not have been perfect when he entered the military service. The various charts note that on induction in March 1967, he was observed to have signs of a traumatic choroiditis, refractive error, and amblyopia, left eye. His visual acuity, at that time, was 20/100. Various notes indicate that his vision was anywhere from 20/100 to 20/400 in that eye. Both on induction and at separation, his vision was said to be in that range also.

The medical history section also included the examining physician's belief that the eye was amblyopic on entry into the military service and had sustained trauma as well. The examining physician repeated the applicant's claim that he injured the left eye twice while in the military service, once from falling over and striking the left side of the eye and orbit on his footlocker on 18 February 1968 and a somewhat similar trauma in June 1968.

The applicant, the exam report states, had been followed at La Jolla Veteran's Hospital since about 1981. An examination note at that time indicates a visual acuity of 2/200 in the left eye. He was noted to have choroidal rupture, "pigmentary retinopathy," and cystoid macular edema as well as some debris in the inferior vitreous. The chart showed numerous rating decisions and appeals. Each came to the conclusion that the left eye was known to be deficient on induction into the military and that there was no definite evidence that events during his military service had further compromised the left eye.

There is no evidence in the available records or in the Vietnam Casualty List, which shows the applicant was wounded or treated for wounds as a result of hostile action in Vietnam.

Evidence of record shows that in April 1970 the applicant underwent a separation physical examination which makes no mention of any wounds sustained as a result of hostile action.

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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 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.

The regulation 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 considered the applicant’s contention that he was injured during a rocket/mortar attack on 18 February 1968 in Vietnam.

2. In the new evidence submitted by the applicant, the examining physician made a note in the medical history section of the Compensation and Pension Exam Report, from the individual's volunteered statement, that he [the applicant] had sustained a blow to the left eye at age 6. The examining physician also noted that the eye may not have been perfect when he entered the military service; that the eye was amblyopic on entry into the military service and had sustained trauma as well.

3. There remains no evidence of record available to the Board, which shows that the applicant was wounded or treated for wounds as a result of hostile action in Vietnam.

4. After review of new evidence submitted by the applicant, the Board concluded the applicant has presented no argument or evidence that is sufficient to reverse the decisions rendered by the Board on 13 January 1982 when it denied the applicant's initial request for award of the Purple Heart, on 7 October 1999, and on 5 November 2002.

5. Further, the Board also determined, after review of all the evidence in this case, that there is insufficient evidence for the Board to reverse its previous decision and on which to base award of the Purple Heart.

6. 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

___js ___ __rks ___ _rwa ____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003085670
SUFFIX
RECON
DATE BOARDED	2003/08/21
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 46	107.0000
2. 61	107.0015
3.
4.
5.
6.