RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 May 2007
      DOCKET NUMBER:  AR20070002161


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William F. Crain              |     |Chairperson          |
|     |Mr. Donald L. Lewy                |     |Member               |
|     |Mr. Roland S. Venable             |     |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 to be
awarded the Purple Heart (PH).

2.  The applicant states, in effect, he thanks the Board for its review of
his case and for ordering correction of his separation document (DD Form
214) to include awards he earned, but which had been omitted.  He states
that upon his discharge, he noticed that awards were not listed, but he was
just anxious to get it all behind him and go home.  He thanks the Board for
its thoroughness and for setting the record straight.  "Setting the record
straight", in reality, is what motivated him to initiate his application at
issue and what passionately drives him to continue the struggle.  He states
that he assumes the Board has all the materials submitted with his original
application available and out of respect for the Board's time, he will
restrict his discussion to issues related to his reconsideration request.
First, he would like to correct an error in his original
27 January 2005 statement to the Board.  On the second last line from the
bottom of page 4, he inadvertently typed a date of 6 May 1968 and it should
instead read 3 May 1968, the date he was wounded.

3.  The applicant further states that it is his sincere contention and
conviction that the evidence submitted with the reconsideration request
demonstrates the existence of a probable error or injustice and establishes
a sufficient basis for issue of the PH.  He claims the evidence shows that
the wound he received was the result of enemy action and it has been
demonstrated through testimony, letters, newspaper clippings, magazine
article, and book excerpts, that his unit was locked in a two-week intense
battle with a vastly superior size North Vietnamese Army (NVA) force.  This
was in fact the largest NVA force ever assembled for a single battle during
the entire Vietnam War.  It was during the heat of battle with the
entrenched enemy, on the afternoon of 3 May 1968, that he was wounded in
the inner right thigh while trying to carry re-supply ammunition to his
squad's position.

4.  The applicant claims that it has been shown that his wound, under less
intense conditions, would have been immediately attended to by a Medical
Corpsman (MEDIC) and proper documentation effected.  He states that the
evidence demonstrates that, due to the ongoing furiousness of the
engagement, heavy casualties, and lack of available MEDICs, many men, like
himself, elected to treat their own relatively minor wounds.  Initially, he
underestimated the seriousness of his wound and about two days later, he
finally realized how deep the shrapnel had cut.  He claims it would be
unconscionable and unjust for him to now be penalized for acting in the
best interest of his unit by being denied the PH.
5.  The applicant further states that after his attempts at self-treating
his wound failed and when conditions allowed, he sought medical assistance.
 He claims recent research efforts on his part revealed that following the
death of his unit MEDIC on 3 May, his platoon had no MEDIC for 5 or 6 days.
 On 8 May, the unit moved north to retrieve 14 members killed in action
(KIA) on 6 May.  He identifies the individual that assumed the unit MEDIC
duties following rest and recuperation (R&R) and indicates it was that
MEDIC who treated his wounds both initially and on a follow-up basis.  He
claims that given the stressful nature of the battle for Nhi and the chaos
that ensued during the battle, many minor wounds sustained were overlooked
and not given the importance that they normally would have received.  He
claims that with officers and MEDICs KIA and WIA, much paperwork form the
battle simply went undone.  He states that in response to the question why
did he wait so long to address the issue, his response is pride and fear.
He states that the Vietnam War had a profound effect on his life and for
all these years, he has tried to be strong and has done his best to fight
off the demons that haunt and attempt to control him, and not being awarded
the PH has bothered him for many, many years.

6.  The applicant concludes by stating that he enlisted in the Army at 18
years old in lieu of going to college, our of a sense of duty to his
country.  He was proud to serve and did not flinch a bit when assigned to
duty in the Republic of Vietnam (RVN) as a combat infantryman.  Tragically,
the horror of that combat experience in his 19th year of life has robbed
him of a normal happy existence and for that; he is somewhat bitter and
resentful.  He states that he avoided pursuing the issue of his missing PH
for so long due to the fact he feared the mental consequences of being
denied, or rejected.  He claims that this proceeding has taxed him to the
limit.  For all he has given, all he has endured, he humbly asks for merely
what he earned in the service of his country; nothing more, nothing less.
He respectfully requests the Board find the evidence submitted in this case
overwhelmingly demonstrates the existence of an error or injustice and
further justifies the correction of his record to reflect award of the PH.


7.  The applicant provides a self-authored statement and four third-party
statements 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
AR20050007343, on 7 February 2006.

2.  During its original review of the case, the Board noted the applicant's
record did contain entries indicating that he had been wounded in action,
and his Military Personnel Records Jacket (MPRJ) was void of any orders or
other documents that indicated he had ever been recommended for or awarded
the PH by proper authority while serving on active duty.  It also noted
that his name did not appear on the Vietnam Casualty Roster and the PH was
not included in the list of authorized awards contained on the applicant's
DD Form 214.  The Board finally concluded that there was insufficient
evidence to satisfy the regulatory burden of proof necessary to support
award of the PH in the applicant's case.

3.  The applicant provides a statement from an individual who indicates he
was the MEDIC that treated the applicant's wound.  This individual states
that he returned from R & R on 6 May 1968, at a time of chaos.  He claims
that the day he arrived back at his unit, they had to go out and bring in
their KIAs.  He states that he is testifying to the fact he treated the
applicant for complications from a shrapnel wound.  He states the wound cut
into the applicant's leg downward about two and one half inches long, and
deep into the subcutaneous fatty tissue. He claims that by the time he saw
the applicant, the wound was badly infected.  This was the result of the
lack of sanitary conditions.  He treated the applicant's wound with topical
antibiotics after cleaning it with Phisohex and water, which was the best
available supplies in Nhi Ha.  He states this treatment took several weeks
to heal the wound because of the bacterial infection.  He claims to have
told the applicant he was eligible for the PH, but he did not personally
pursue it because the casualty rate for the WIA and KIA were too high
during this period.  He concludes by stating that he prays his testimony
will correct this injustice.

4.  The applicant also provides a statement from an individual who
indicates he was the applicant's commanding officer at the time.  This
individual recounts the circumstances surrounding the battle of Nhi Ha and
states that as a matter of expediency, Soldiers who had not been totally
incapacitated, even though they had sustained relatively serious wounds
were not immediately treated during the battle.  In fact, the unit took
such extremely heavy losses that wounds that were not life threatening, but
still incurred under enemy fire, were not given priority.  He states that
the unit lost 50 percent of their company grade officers and the
applicant's platoon was almost annihilated.  He states there was continuous
contact with the enemy for a period of six days from 3 May through 9 May
1968, during which time wounds that were not life threatening or disabling,
the Soldiers were treated by the Soldiers themselves until such time as
MEDICs became available.

5.  The former unit commander states the applicant was among many Soldiers
who unselfishly did not request removal from the field or immediate
treatment of his substantial wound.  Under normal combat situations, the
applicant would have been removed from the field for at least two or three
days.  However, in the grave conditions at Nhi Ha, with the severe
reduction of personnel, which included the death of the 2nd platoon MEDIC
and the wounding of the 3rd platoon MEDIC, Soldiers suffering from serious,
but not life threatening wounds, remained in the field untreated.  He
concludes by stating as the commanding officer at the time, he submits this
statement as an accurate and factual account of the circumstances under
which he believes the applicant to have earned the PH and he hopes it is
now awarded to him.

6.  The applicant provides a statement from a former service member who
served as a platoon sergeant with the applicant during the battle of Nhi
Ha.  He attests to the chaotic circumstances that existed during the battle
and to the fact that paperwork on awards earned during the battle was not
completed.  He also states that he truly believes the applicant deserves
the Ph for his wound and probably a lot more.

7.  The applicant further provides a statement from an individual who
claims to have interviewed the applicant and another former Soldier of his
unit who participated in the battle of Nhi Ha.  He states that he has
interviewed thousands of Vietnam veterans over the years, and found the
applicant to be completely honest and honorable who told no exaggerated war
stories.  He states the applicant's memories of Nhi Ha matched exactly what
other veterans also told him about the battle, and what could be gleaned
from the Army's own after-action reports.  The applicant also still had
letters he had written home at the time.  He states that during this long
ago interview, the applicant and the other Soldier described how the
applicant had been grazed in the thigh by a piece of shrapnel at Nhi Ha on
3 May 1968.  He now understands the applicant did not receive the PH he
earned that day.  He asks that it be considered that the platoon MEDIC,
whose responsibility it would have been to report the applicant's wound was
shot in the head and killed while running towards a wounded comrade on 3
May 1968. As such, he is not surprised the applicant's wound was apparently
not recorded. He states the battle of Nhi Ha was a savage and costly battle
that lasted many hectic days, and it was impossible during such an intense
battle to keep perfect records, especially in regard to awards and
decorations, which were really an afterthought with so many men being
killed and maimed.

8.  The applicant's record shows the he enlisted in the Regular Army and
entered active duty on 18 August 1967.  He was initially trained in,
awarded and served in military occupational specialty (MOS) 11B (Light
Weapons Infantryman) and the highest rank he attained while serving on
active duty was specialist five (SP5).
9.  The applicant's Enlisted Qualification Record (DA Form 20) shows he
served in the RVN from 5 February 1968 through 4 February 1969.  Item 38
(Record of Assignments) shows that during his RVN tour, he was assigned to
Company A, 3rd Battalion, 21st Infantry Regiment, 196th Light Infantry
Brigade, performing duties in MOS 11B as a rifleman and machine gunner
through 5 October 1968 and to Headquarters and Headquarters Company (HHC),
196th Infantry Brigade from 6 October 1968 through 2 February 1969,
performing duties in MOS 11B as a rifleman.

10.  Item 40 (Wounds) of the applicant's DA Form 20 is blank and the PH is
not included in the list of authorized awards contained in Item 41 (Awards
and Decorations).  The applicant last audited the DA Form 20 on 21 January
1969.

11.  The applicant's MPRJ is void of any orders or other documents that
indicate the applicant was ever recommended for or awarded the PH by proper
authority while serving on active duty.  It is also void of any medical
treatments records that show he was ever treated for a combat related wound
by military medical personnel while serving in the RVN.

12.  On 17 August 1970, the applicant was honorably released from active
duty (REFRAD) after completing 3 years of active military service.  The DD
Form 214 he was issued at the time shows he earned the National Defense
Service Medal, Vietnam Service Medal, RVN Campaign Medal, Combat
Infantryman Badge, and the Army Good Conduct Medal during his active duty
tenure.  The applicant authenticated this document with his signature in
Item 32 (Signature of Person Being Transferred or Discharged) on the date
of his REFRAD.

13.  On 19 June 2006, a DD Form 215 (DD Form 214 correction) was prepared
as a result of the Board's original review of this case.  This correction
added the RVN Gallantry Cross with Palm Unit Citation, Navy Unit Citation
Badge, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and 4
bronze service stars to his Vietnam Service Medal to the list of authorized
awards contained on the applicant's  DD Form 214.

14.  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 and this treatment must be supported by medical treatment records
that were made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his petition to be
awarded the PH and the supporting statements he provided were carefully
considered.  However, absent any evidence of record to corroborate the
information presented by the applicant and in the third-party statements he
provides, there is still insufficient evidence to support award of the PH
in this case.

2.  By regulation, in order to support award of the PH there must be
evidence that the wound for which the award is being made was sustained as
a result of enemy action, that the wound required treatment by military
medical personnel, and a record of this treatment must have been made a
matter of official record.

3.  In this case, Item 40 of the applicant's DA Form 20 is blank, which
indicates he was never wounded in action, and Item 41 does not include the
PH in the list of earned awards.  The PH is not included in the list of
awards contained on the applicant's DD Form 214, which he authenticated
with his signature on the date of his separation, more than a year after he
had left the RVN.  In effect, his signature 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.

4.  Further, the applicant's MPRJ is void of any medical treatment records
that show he was ever treated for a combat related wound or injury while
serving on active duty.  Although a statement is provided from a former
MEDIC who the applicant claims treated him for his shrapnel wound, no
medical treatment records are provided that confirm this treatment was made
a matter of official record, as is required by regulation.

5.  In addition, although a statement is provided by the applicant's former
unit commander indicating the applicant should have received the PH, there
are no orders or other documents on file in the applicant's record that
show he was ever recommended for or awarded the PH by proper authority
while serving on active duty.  While it is understandable that it was not
possible to prepare and submit awards paperwork during the battle in
question, the applicant served in the RVN in the same unit for eight or
nine months after the battle in question, and he continued to serve in the
Army for an additional year or more after this action.  There is no
indication that any attempt was made to resolve the PH issue by either the
applicant or his chain of command in the months he remained serving in the
RVN after the battle in question, or that the applicant made any attempt to
resolve the issue himself at anytime in the year he remained serving on
active duty after his departure from the RVN and prior to his separation.

6.  The veracity of the applicant's claim of entitlement to the PH and of
the information contained in the third-party statements provided is not in
question.  However, by regulation, in order to support award of the PH
there must be evidence that wound for which the award is being made was
received as a result of enemy action; that the wound required treatment by
military medical personnel; and a record of this medical treatment must
have been made a matter of official record.  Absent any evidence of record
to corroborate the information contained in the third-party statements
provided and/or of any evidence that the applicant was awarded the PH by
proper authority while serving on active duty, the regulatory burden of
proof necessary to support award of the PH has still not been satisfied in
this case, and the applicant's request must be denied in the interest of
all those who served in the RVN and who faced similar circumstances.

7.  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:

________  ___DLL _  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RSV _  ________  __WFC__  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 AR20050007343, dated 7 February 2006.




                                  _____William F. Crain____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070002161                           |
|SUFFIX                  |                                        |
|RECON                   |AR20050007343  2006/02/07               |
|DATE BOARDED            |2007/05/22                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1970/08/17                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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