RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           2 August 2005
      DOCKET NUMBER:  AR20040010625


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette R. McCants           |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reconsideration of his request for
award of the Purple Heart (PH).

2.  The applicant states, in effect, the Board conclusions arrived at
during the first review of his case were based on substantially incomplete
and incorrect records. He claims the evidence, both old and new was
ignored, discounted, and misinterpreted.  He contends the chipped tibia
referred to was the result of a shrapnel wound he received during a battle
with North Vietnamese Army regulars in the summer of 1968.

3.  The applicant also claims his wound was treated by a Army of the
Republic of Vietnam (ARVN) medical corpsman (MEDDIC), and subsequently at
the
17th Field Dispensary in Saigon.  He further states this was presented to
the Department of Veterans Affairs (VA) immediately upon his return from
the Republic of Vietnam (RVN), and evidence of the wound was made part of
his
VA medical record, along with radiological studies of other shrapnel
remaining in his body.  He further states that the VA provided a witness
list back to 1968 to substantiate the service connection of the wound to
his lower left leg, and two letters from comrades are provided as further
evidence of his wounds.

4.  The applicant provides four self-authored letters as new evidence in
support of his reconsideration request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2004105198, on
7 October 2004.

2.  During its original review of this case, the Board concluded there was
no medical evidence confirming the applicant was wounded as a direct result
of hostile action while serving in the RVN.  The applicant now provides a
letter indicating that a copy of the medical examination completed on him
by the VA in 1969 was just made available to him.  He indicates the
examiner found what his private physician found immediately upon his return
from the RVN, no more, no less.
3.  In the letter he provides as new argument, the applicant further states
that where the VA examination gets off track is the comments regarding the
“bone chip” in the lower left leg.  He claims it is more than a bone chip,
and it was caused by something other than going up and down stairs.  He
claims there is a clear notch cut or blown out of the bone with splintering
above and below the notch.  There is a scar about the size of a dime, and
the wound can be seen and felt.  This was shown to a VA doctor in Decatur,
Georgia for his medical file.  He further states the radiological study of
26 January 1969 corresponds to what this doctor witnessed, and the report
of the event remains virtually the same story for almost 37 years.

4.  The applicant’s VA file was not made available for review, and the
applicant fails to provide the actual VA examination of 26 January 1969
with his reconsideration request.  The evidence does include an extract of
what appears to be a VA rating decision from August 1969.  This document
indicates the applicant’s following medical conditions were determined to
be service connected:  hemorrhoids, psoriasis and a bone chip of the left
tibia.  The applicant also fails to provide a statement from the VA doctor
he claims viewed his wound as he described it in his letter.

5.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and
criteria concerning individual military awards.  Paragraph 2-8 contains the
regulatory guidance pertaining to awarding the PH.  It states, in pertinent
part, that in order to award a PH there must be evidence that a member was
wounded or injured as a result of enemy action.  The wound or injury for
which the PH is being awarded must have required treatment by a medical
officer, this treatment must be supported by medical treatment records that
were made a matter of official record.

6.  The awards regulation further defines a wound as an injury to any part
of the body from an outside force or agent sustained under one or more of
the conditions listed above.  When contemplating an award of the PH, the
key issue commanders must take into consideration is the degree to which
the enemy caused the injury. The fact that the proposed recipient was
participating in direct or indirect combat operations is a necessary
prerequisite, but is not sole justification for award.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for reconsideration of his request for the PH
and the new argument he presents was carefully considered.  However, his
record is void of any indication that he was wounded in action, or that he
was ever recommended for, or awarded the PH while serving on active duty.

2.  As established during the Board’s first review of this case, Item 40
(Wounds) of the applicant’s Enlisted Qualification Record (DA Form 20) was
blank, and Item 41 (Awards and Decorations) did not include the PH in the
list of earned awards, which indicates he was never wounded in action, or
awarded the PH.

3.  The PH is also not included in the list of awards contained in the
applicant’s
2 November 1968 separation document (DD Form 214), which he authenticated
with his signature on the date of his separation.  His signature, in
effect, was his verification that the information contained on the DD Form
214, to include the list of awards, was correct at the time the document
was prepared and issued.  Finally, his name was not included on the Vietnam
Casualty Roster, the official Department of the Army list of RVN battle
casualties.

4.  The absence of any record entries indicating he was wounded in action,
or awarded the PH, wound indicate his chain of command, medical officials
and records custodians in the RVN did not believe the leg injury in
question was received as a direct result of, or was caused by enemy action,
or entitled him to the PH.

5.  The veracity of his claim that he received a lower leg injury while
serving in the RVN, and of the witness statements and other evidence he has
provided with his two requests is not in question.  However, absent some
evidence of record to corroborate that his wound was received as a direct
result of, or was caused by enemy action, or that he was treated for a
combat related wound, there is an insufficient evidentiary basis to support
granting the requested relief.

6.  By regulation, in order to support award of the PH, there must be
evidence confirming the wound for which the award is being was received as
a direct result of, or was caused by enemy action.  There must be evidence
confirming the wound was treated by military medical personnel, and the
record of medical treatment must be made a matter of official record.

7.  In this case, notwithstanding the applicant’s claims to the contrary,
absent some evidence of record to corroborate his claim of entitlement to
the PH and the independent evidence he provided, the regulatory burden of
regulatory burden of proof necessary to support award of the PH has not
been satisfied, and his PH request must be denied in the interest of all
those who served in the RVN and who faced similar circumstances.

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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___WDP_  ___RLD_  __JRM __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis to amend the decision of
the ABCMR set forth in Docket Number AR2004105198, dated 7 October 2004.




            ____William D. Powers_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040010625                           |
|SUFFIX                  |                                        |
|RECON                   |AR2004105198 / 2004/10/07               |
|DATE BOARDED            |2005/08/02                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1968/11/02                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |OS RET                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  61   |107.0015                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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