RECORD OF PROCEEDINGS


      IN THE CASE OF:



      BOARD DATE:        24 August 2006
      DOCKET NUMBER:  AR20060001298


      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. G. E. Vandenberg              |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Jeanette R. McCants           |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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 reconsideration of the previous Board action to
include award of a second Purple Heart.

2.  The applicant states he was wounded twice on the same day, once on the
ground and a second time as he was being evacuated.  He indicates he
received two Purple Heart medals while in the hospital.

3.  The applicant provides copies of his DD Form 214 (Report of
Separation); two award certificates for the Purple Heart; Headquarters,
Americal Division General Orders Number 4000, dated 16 April 1970;
Headquarters, 27th Surgical Hospital General Orders Number 49, dated 19
April 1970; and a statement from a fellow Soldier who attests to knowing
that the applicant was wounded twice on the same day.

CONSIDERATION OF EVIDENCE:

1.  The previous review was undertaken to correct the applicant’s records
by awarding him the Combat Medical Badge.  Although the applicant is
requesting a reconsideration of this case, it is not technically a
reconsideration, in that the applicant did not previously request that his
records be corrected to show award of the Purple Heart and the previous
decisional document did not address the issue of award of the Purple Heart
with one Oak Leaf Cluster.  Therefore, this case should be and is presented
as a new issue with inclusion of the previous decisional document by
reference.

2.  The applicant is requesting correction of an alleged error which
occurred on 26 June 1970, the date of his release from active duty.  The
application submitted in this case is dated 21 November 2005.

3.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.



4.  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
AR20040009556, on 18 August 2005.

5.  With the exception of his entrance and separation Reports of Medical
History the record does not contain any service medical records.  The
service medical records are believed to be on indefinite loan to the
Department of Veterans Affairs and as such are not available for review by
the Board at this time.

6.  Headquarters, 27th Surgical Hospital General Order Number 49, dated
16 April 1970, awarded the applicant the Purple Heart for wounds received
on 15 April 1970.

7.  A 16 April 1970 Purple Heart award certificate, signed by Lieutenant
Colonel G___ W. F____, Commanding Officer, 27th Surgical Hospital,
indicates the applicant was awarded the Purple Heart for wounds received on
15 April 1970.

8.  Headquarters, Americal Division General Orders Number 4000, dated 16
April 1970, awarded the applicant the Purple Heart for wounds received on
15 April 1970.

9.  An 8 May 1970 Purple Heart award certificate, signed by Major General
A. E. M____, indicates the applicant was awarded the Purple Heart for
wounds received on 15 April 1970.

10.  The applicant’s separation examination medical history form indicates
he has a prescription for reading glasses and a healed fracture of the
right olecranon (elbow) with a 10 percent loss of flexion and 20 percent
loss of extension.

11.  The DA Form 20 (Enlisted Qualification Record) entry at item 40
(Wounds) indicates the applicant sustained a missile wound to the right
chest on 15 April 1970.

12.  In a previously submitted statement from Dr. R____ M___, who served in
Vietnam as battalion surgeon, the doctor recounts that he served with and
trained the applicant to perform the duties of a medical specialist in
Vietnam due to a high rate of loss and shortage of school trained medical
specialists.  He states he knows that the applicant received wounds to his
chest and arm in ground action.

13.  In a 22 November 2005 statement M____ D_____, who identifies himself
as a specialist five and the “head medic” for Company C, states he
personally treated the applicant for a gunshot wound to the chest from an
enemy sniper.  He further states he recalls that the helicopter that was
evacuating the applicant was hit by sniper fire.  When he visited the
applicant in the hospital at Chu Lai (249th General Hospital) a week later
the applicant told him he had been hit a second time and showed him his two
Purple Hearts.  In September 1970 he again visited the applicant and was
shown the scars from these wounds to his chest and back.

14.  The Vietnam Casualty List does not include the applicant’s name on the
list.

15.  Army Regulation 600-8-22, paragraph 2-8 provides for award of the
Purple Heart to an individual who is wounded in action against an enemy of
the United States, the armed force of a foreign country which is or has
been engaged, while serving with a friendly foreign forces against an
opposing force even though the U.S. is not engaged, as the result of any
act of such enemy or opposing force or as a result an act of any hostile
foreign force.  Substantiating evidence must be provided to verify that the
wound was the result of hostile action, the wound must have required
treatment by a medical officer, and the medical treatment must have been
made a matter of official record.

16.  United States Army Vietnam (USARV) Regulation 672-1 (Decorations and
Awards) provided, in pertinent part, for award of the Purple Heart.  The
regulation stated that authority to award the Purple Heart was delegated to
hospital commanders.  Further, it directed that all personnel treated and
released within 24 hours will be awarded the Purple Heart by the
organization to which the individual is assigned.  Personnel requiring
hospitalization in excess of 24 hours or evacuation from Vietnam will be
awarded the Purple Heart directly by the hospital commander rendering
treatment.

DISCUSSION AND CONCLUSIONS:

1.  The statement from the “medic” who originally treated the applicant
indicates he treated the applicant, on the ground, for wounds to the chest
and arm and he saw the helicopter take enemy rounds.  He indicates that he
later saw healing scars on the applicant’s chest and back.

2.  The statements of individuals are inadequate as the sole basis for an
award of the Purple Heart because they do not fulfill the regulatory
requirement that there be a record of medical treatment.  However, they are
normally accepted as a substantiation of the combat or the enemy origin of
a wound for which there is a record of treatment.
3.  Without the service medical records to verify the location of his
wounds and to determine that the reported wounds to the applicant’s chest
and back were clearly separate and distinct wounds, there is insufficient
documentation to determine if the applicant was wounded twice or if he
received a through and through wound.

4.  There is a possibility that the Purple Heart awarded based on the
divisional orders, and presented a month after the hospital’s award, was
for a second wound.  It is also possible that the award issued by the
divisional headquarters essentially duplicated the one issued by the
hospital since the hospitals were tasked with issuance of the award if the
service member was retained for treatment for more than 24 hours.

5.  Again, without medical records to show that the applicant clearly
sustained a wound to the back on the same date as the chest wound noted on
the DA Form 20, the issuance of two sets of orders and two award
certificates is insufficient to show the applicant was wounded in two
separate and distinct incidents.

6.  Therefore, there is insufficient evidence to support a correction of
the records to show award of a second Purple Heart at this time.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 June 1970; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 25 June 1973.  The applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JRM __  __RCH__  __SWF__  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.





                                  __    Jeanette R. McCants___________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060001298                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/08/24                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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