RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 May 2008
	DOCKET NUMBER:  AR20070016522 


	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.




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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 his request for award of the Purple Heart.

2.  The applicant states, in effect, that he gives permission for Mr. Dennis D____ to apply for reconsideration of his request.  

3.  The applicant, in effect, defers to counsel to provide pertinent evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel, the applicant's platoon leader from Vietnam, submits the information with the applicant's permission.  

2.  Counsel states that this is the sixth package he has sent in an effort to have the applicant awarded the Purple Heart.  

3.  Counsel provides his own statement with two sketches to help clarify information already considered by the Board and his own DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous considerations of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers AR1999032127, AR2002076103, AR2003093948 and two other requests were administratively closed.  

2.  This request for yet another reconsideration includes evidence that clarifies previously considered evidence and requires Board consideration as an exception to policy, because careful reading of the entire case, thus far, suggests an unjust outcome.     
 
3.  Mr. Dennis D____, the applicant's former platoon leader, does not fit the usual definition of "Counsel."  However, in light of the applicant's authorization for him to apply on his behalf, that designation is appropriate.

             

4.  In a 16 December 1999 statement, an American Legion service representative stated in his submission to the Board that the applicant was "claiming entitlement to four Purple Hearts."  The Board considered this application as AR1999032127 and the pertinent details are as follows:
      
      a.  The applicant wrote that on 2 December 1967 their company was sent to reconnoiter a hill.  About half-way up they recognized the hill was full of tunnels.  They started to receive heavy fire and were driven to the bottom of the hill.  "I was firing back so much…surrounding my hands with hot empty ammo cartridges…. The company medic was checking our positions to see about injuries and he used burn ointment and wrapped my hands with bandages…he took care of me for a week." 

      b.  A 16 April 1999 unsworn statement by Mr. George A. T____ related that the applicant suffered hearing loss when their armored personnel carrier (APC) hit a land mine. 

      c.  In another statement with the same date Mr. T____ also stated that he and the applicant were in their APC during the first week of January 1968 when it hit a mine.  In the second or third week of January 1968 the applicant got hit by a piece of shrapnel in the arm.  He was bandaged by a medic, two or three days later he got hit in the leg and was again treated by a medic.
      	
      d.  In a 16 July 1999 statement Mr. T____ wrote that, in March 1968, the applicant burned his arm while changing the barrel of a hot .50 caliber machinegun while under enemy attack.

      e.  Based on these statements from Mr. T____ and effective 
25 September 1999, the Department of Veterans Affairs (VA) granted service connection for a fragment wound to the upper left arm sustained in January 1968 and for a fragment wound to the left leg sustained three days later.

      f.  On 22 December 1999, the ABCMR concluded that there was insufficient evidence to justify any award of the Purple Heart.

5.  The applicant requested reconsideration on 29 May 2002 and that request was sent to the Board as AR2002076103.  The important details follow: 

      a.  The undated statement from a comrade-in-arms was accepted as new evidence.  Randolph S. S____, the company medic, wrote that, on 19 October 1967, the applicant was burned on the arms by hot cartridge casings being ejected from his M-60 machine gun.  He remembers the incident because it was his first combat action and he had just taken over as the senior medic in the company.  After seeing to the evacuation of a more seriously wounded Soldier, the medic relates that, "I became aware of a second casualty, [the applicant] who came up to me and P____ T____, my first platoon medic, with his arms burned to the point that they needed to be treated."  He relates that he treated the applicant by applying ointment and a "folded under, figure eight bandage."  He filled out and submitted a field medical card and assumed until recently that the applicant had received the Purple Heart.

      b.  The Board considered the medic's statement and concluded that the applicant had been treated "for burns he had incurred from coming into contact with hot shell casings from a friendly machine gun."  It decided that the Defense Appropriations Act of 1994 changes to friendly fire considerations in Purple Heart cases meant that the applicant was eligible for the Purple Heart in the situation described, but that, since the medic had not actually observed how the burns were incurred, there was insufficient evidence that they "were a result of contact with the enemy."

6.  The applicant submitted a 24 April 2003 statement from another individual and requested reconsideration.  The case was considered by the Board as 
AR2003093948.  

      a.  Mr. D____ D____ , identified himself as the platoon leader and asserted that he was present on the scene on 19 October 1967.  He wrote that he was within one meter of the applicant and that he observed cartridge casings falling on the applicant's exposed arms.  The platoon leader called for artillery and after the hostile fire ceased one wounded Soldier was evacuated and "our medic, R____ S____ …asked for clean water from our canteens to wash the burns on [applicant's] arms…then…put ointment on his wounds and bandaged his arms.…"
      
      b.  The Memorandum of Consideration also reiterated the details from the first two considerations, focused on the difference in the details among the various submissions, and concluded that this "reinforces the doubt and makes it even more difficult to make a determination."

7.  The current submission constitutes clarifying information in the case.  The platoon leader again describes the location, the tactical situation, the applicant's actions, injury, and medical treatment.  He relates how the applicant was firing his M-60 Machinegun from a prone position while partially on the berm or dike of a rice paddy.  A series of piles and rows of sticks and stones, which he termed riprap, formed a rough "Z" or more accurately a sidewise "Z" shape along the top of the berm.  The applicant was at a turn in the riprap and hard up against it on his right.  He had dug his M-60 down into the riprap.  He was not sweeping his fire but concentrating it on the origin of the heaviest incoming fire.  As a result, the empty cartridge cases were rolling down the riprap and piling-up on his arms. The platoon leader includes two sketches to help illustrate the situation.  His own DD Form 214 shows he was awarded the Silver Star and two Purple Hearts.  His Vietnam tour of duty lasted only 4 months.

8.  The record of proceeding for AR199032127 noted that the applicant's tour of duty in Vietnam extended from 22 September 1967 to 28 August 1968.

9.  Army Regulation 600-8-22 also authorizes a bronze service star, based on 
qualifying service, for each designated campaign period listed in Appendix B of the regulation and states that authorized bronze service stars will be worn on the appropriate campaign or service medal.   The regulation also lists the designated campaign periods for which a bronze service star is authorized for wear on the Vietnam Service Medal.  Based on the applicant's dates of service in Vietnam, Appendix B indicates he served during the following four campaign periods:  the Counteroffensive Phase III, 1 June 1967 – 29 January 1968; the Tet Counteroffensive, 30 January 1968 – 1 April 1968; the Counteroffensive Phase IV, 2 April 1968 – 30 June 1968; and the Counteroffensive Phase V, 1 July 1968 – 1 November 1968.

DISCUSSION AND CONCLUSIONS:

1.  The Board members considering  AR2002076103 concluded that the applicant  had been treated "for burns he had incurred from coming into contact with hot shell casings from a friendly machine gun" and that, if this injury was sustained in the situation as described, it would have qualified for award of the Purple Heart.  However, those Board members also concluded that, since the medic had not actually observed how the burns were incurred, there was insufficient evidence that they "were a result of contact with the enemy."

2.  The platoon leader's statement makes it abundantly clear that the applicant's burns "were a result of contact with the enemy."  However, judicious reconsideration requires that all of the available evidence be examined and the third Board apparently focused on the contradictions within the overall case.  There are certainly enough contradictions among the various submissions to show that all of the various assertions could not be true.  
   
3.  Nevertheless, in light of the recent illumination provided by the platoon leader, it is clear that the applicant was treated for wounds sustained as the result of hostile action on 19 October 1967.  He should be awarded the Purple Heart 

4.  The applicant served in Vietnam during four designated campaign periods and is entitled to wear four bronze service stars on the Vietnam Service Medal.  

BOARD VOTE:

____X___  ___X____  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding him the Purple Heart for wounds sustained as the result of hostile action on 19 October 1967 and by showing that is authorized to wear four bronze service stars on his already-awarded Vietnam Service Medal.




      __________X____________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070016522



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