RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2008
	DOCKET NUMBER:  AR20080000333 


	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.










      The following members, a quorum, were present:













	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.  Through a Member of Congress, the applicant requests, in effect, reconsideration of his earlier petition to be awarded the Purple Heart (PH).  

2.  The applicant states, in effect, that he has issues with several comments regarding the Record of Proceedings published during the original review of his case.  

3.  The applicant provides a statement from his son, written on his behalf, and a his Congressional Inquiry with documents submitted with the original application 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 AR20070010031, on 11 December 2007.  

2.  During its original review of the case, the Board found no evidence to support the applicant's claim that he was separated on temporary records, or that the name change he made days after he was inducted affected the maintenance of his military records.  It further determined the award documents pertaining to other individuals he claims to have been provided a result of his records request were not on file in his records at the time of the Board review.  It also concluded that the medical treatment record provided by the applicant indicated he was injured when a trip flare exploded in his hand, did not confirm this injury was received as a result of enemy action, and that another treatment record he provided revealed that x-rays of his lungs revealed findings compatible with Tuberculosis (TB), and did not support his claim that this condition was the result of the injury he received as a result of the trip flare explosion.  The Board also indicated that although the applicant's service medical records were not made available for the review, the Department of Veterans Affairs (VA) noted that it reviewed the applicant's service medical records and that these records indicated the applicant was never treated for, or diagnosed with any combat wound to the lung.  As a result, the Board determined there was insufficient evidence to support award of the PH in the applicant's case.  


3.  The applicant provides a letter from his son as new argument.  In this letter, the applicant's son takes issue with information contained in the original Record of Proceedings.  He states that he does not understand how the applicant's service medical records were not available to the Board, and that he does not know how it is possible his father lived with TB for 35 years.  He further states that he does not understand that if the applicant were treated for this condition, why the medical treatment records are not available.  He also asks why the applicant was not included on the Vietnam Casualty Roster if he was injured and the doctors made it a point to write the words “exploded in his face” on the treatment document.  He also states that he wishes someone to look into the issue of names contained on award orders that he believes should be issued to his father, who served with the unit in question at the time.  

4.  The applicant's record shows that he was inducted into the Army and entered active duty on 23 April 1968.  He was trained in and awarded military occupational specialty (MOS) 36K (Wireman), and specialist four (SP4) is the highest rank he attained while serving on active duty.  His Official Military Personnel File (OMPF) contains orders, dated 26 April 1968, just three days after his induction, that changed (corrected) his name because it had been incorrectly transcribed from his birth certificate.  This change resulted in his name being properly recorded on all his military records, documents, and orders from that date on.  

5.  The applicant's Enlisted Qualification Record (DA Form 20) shows he served in the Republic of Vietnam (RVN) from 29 July 1969 through 30 March 1970, and that during this RVN tour, he was assigned to Headquarters and Headquarters Company (HHC), 196th Infantry Brigade, performing duties in MOS 36K as a wireman and switchboard operator.  Item 40 (Wounds) is blank, and the PH is not included in the list of awards contained in Item 41 (Awards and Decorations). 

6.  The applicant's OMPF contains several orders and other documents prepared on the applicant while he was serving in the RVN.  All these orders contain his correct name, as changed on 26 April 1968, and his correct Social Security Account Number (SSAN) and/or Army Service Number (ASN).  This includes Headquarters, Americal Division General Orders Number 1935, dated 2 March 1970, which awarded him the Amy Commendation Medal (ARCOM), for his meritorious service with the 196th Infantry Brigade, during the period July 1969 through April 1970.  There are no documents on file that indicate he was ever wounded in action or awarded the PH by proper authority; and there are no medical treatment records on file that indicate he was ever treated for a combat related wound or injury while serving on active duty.  

7.  On 30 March 1970, the applicant was honorably separated after completing
1 year, 11 months, and 8 days of active military service.  The separation document (DD Form 214) does not include the PH in the list of earned awards contained in Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), and the applicant authenticated the document with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his separation.  

8.  As a result of the original Board consideration of this case, the applicant's record and separation document were corrected by adding the Army Good Conduct Medal, Valorous Unit Award, RVN Gallantry Cross with Palm Unit Citation, and 2 bronze service stars for wear on his Vietnam Service Medal.  

9.  As indicated in the original Record of Proceedings, the applicant's name was not included on the Department of the Army Vietnam Casualty Roster.  During the processing of this case, a member of the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Department of the Army (DA) Military Awards Branch, which contains orders issued between 1965 and 1973, during the Vietnam era.  There were no PH orders pertaining to the applicant or the individual who the applicant refers to in his request on the ADCARS.  

10.  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 award of the PH.  It states, in pertinent part, that in order to award a PH there must be evidence that the wound for which the award is being made was received as a result of enemy action; that the wound required medical treatment by medical personnel; and a record of the medical treatment must have been made a matter of official record.  

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) 
prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Chapter 2 contains guidance on the establishment and functions of the ABCMR.  It states, in pertinent part, that the ABCMR is not an investigative body, and will consider applications properly brought before it based on the evidence of record and independent evidence provided.  It further stipulates that the ABCMR begins its consideration of each case with the presumption of administrative regularity, and that the applicant has the burden of proving an error or injustice by a preponderance of the evidence.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his case was not properly considered and that the Record of Proceedings prepared during the original review contained inconsistencies, which by implication means the Board decision was arbitrary and capricious was carefully considered.  However, by regulation, the ABCMR is not an investigative body and considers each application based on the evidence of record and independent evidence provided with the application.  

2.  In this case, all the records pertaining to the applicant remaining on file at the National Personnel Records Center (NPRC), and the medical treatment records provided by the applicant, were fully considered and evaluated by the Board during its original review.  It appears military medical records were obtained by the applicant to use in the VA claims process, and it is presumed the applicant provided all applicable treatment records that were available to the VA with his original application.  Further, a review of the ADCARS failed to reveal any PH orders on the applicant or the individual the applicant's son refers to in his reconsideration request.  In addition, the award and other orders on file in the applicant's record contain his correct name and SSAN.  As a result, notwithstanding the applicant's son's assertions to the contrary, the original Board review was thorough, and all the available medical treatment records and service records were properly reviewed and evaluated.  

3.  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 award entered.  The applicant's DD Form 214 does not include the PH in the list of awards entered and the applicant authenticated this document with his signature on the date of his separation.  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 separation document was prepared and issued.  In addition, the applicant's name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  

4.  Further, the applicant's record is void of any orders or other documents that indicate he was recommended for or awarded the PH by proper authority while serving on active duty, or that confirm he was treated for a combat related wound by military medical personnel while he was serving in the RVN.  Absent any evidence that confirms the applicant was wounded as a result of enemy action, the regulatory burden of proof necessary to support award of the PH has still not been satisfied in this case.  

5.  In view of the facts of this case, it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to support amendment of the original Board decision, or to grant the requested relief on this issue.  The applicant, his son, and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant, his son, and all Americans should be justifiably proud of the applicant's service in arms.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__TSK __  __JLP___  __DWT__  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 AR20070010031, dated 11 December 2007.




      _____TSK                ____
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080000333



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508