IN THE CASE OF:	  

		BOARD DATE:	        04 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080008958 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his request to have his military records corrected to show the award of the Purple Heart be reconsidered.

2.  The applicant essentially states that he applied to have his Purple Heart added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) but was denied.  He also states, in effect, that as it shows on the after action report (AAR), his unit was in battle and was assisted by their sister company, and that the medic who filled out a field medical card on him was assigned to this sister unit.  He further states that as one can see by the field medical card, the medic was going to put a pressure dressing on his wound but decided just to put a regular dressing on it, and that he has the original field medical card.  He continued by essentially stating that in paperwork denying his previous request, the doctor stated "on the left side of neck," and doubted if the origin of his neck wound was from hostile action.  However, he essentially states that the shrapnel was in the right side of his neck and not the left side, and that if this doctor looked at the wrong side of his neck for a year he still would not see the shrapnel.  He also believes that the negative statement by this doctor may have influenced the Army Board for Correction of Military Records (ABCMR).  Lastly, he asks that his excellent record be looked at.

3.  The applicant provides a self-authored statement; his DD Form 214; the aforementioned field medical card; a portion of the previous consideration of his case by the ABCMR; and an AAR, dated 30 April 1969 in support of this application. 



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 ABCMR in Docket Number AR20070016566, on 18 March 2008.

2.  The applicant essentially stated that as it shows on the AAR he provided, his unit was in battle.  However, nowhere in this AAR is any person, including the applicant, specifically mentioned as a casualty or as a person wounded in action.

3.  The applicant also stated, in effect, that in paperwork denying his previous request, the doctor stated "on the left side of neck," and doubted if the origin of his neck wound was from hostile action.  However, the applicant also stated that the shrapnel was in the right side of his neck and not the left side, and that if this doctor looked at the wrong side of his neck for a year he still would not see the shrapnel.  He also believes that the negative statement by this doctor may have influenced the ABCMR.  As a result, a thorough review of the 2 March 1970 document which was prepared by a medical officer at the dispensary at Fort Hood, Texas was reevaluated. From that review, it appears that the analyst in the previous consideration of the applicant's case incorrectly interpreted the information contained on that form.  However, whereas the previous record of proceedings and the applicant essentially believe that this document states "on left neck small surface fragment in neck, doubt if origin of H.A. [hostile action], it actually appears that the medical officer made the following two separate entries:

	a.  "Ears OK wax on [right], hearing [decreased – noted by a down-arrow symbol] on left" and

	b.  "Neck small surface [fragment] in neck – doubt if origin of H.A.."

4.  In reviewing this document, it should be noted that the medical officer indented the second line of the entry regarding the applicant's ears, and indented the second and third lines of the entry on the applicant's neck.  As a result, it appears that the reference "on left" was in regards to the applicant's hearing in his left ear and not his neck.

5.  A search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System, a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era, was also conducted to see if any orders awarding the applicant the Purple Heart were present.  However, although this search produced a general order awarding him the Army Commendation Medal, there was no order which awarded him the Purple Heart. 
6.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have been treated by military medical personnel, and the medical treatment must have been made a matter of official records.  Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire; the wound or injury must have required treatment by military medical personnel; and the record of medical treatment must have been made a matter of official Army records.  A physical lesion is not required, however, the wound for which the award is made must have required treatment by a medical officer and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.  When contemplating an award of the Purple Heart, the key issue that 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.

7.  Examples of enemy-related injuries which clearly justify award of the Purple Heart include injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy release chemical, biological, or nuclear agent; and injury caused by vehicle or aircraft accident resulting from enemy fire.

8.  Examples of injuries or wounds which clearly do not qualify for award of the Purple Heart include heat stroke, battle fatigue, disease not directly caused by enemy agents; and accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.  

9.  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 ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his request to have his military records corrected to show the award of the Purple Heart should be reconsidered.


2.  The new evidence and argument provided by the applicant was carefully considered.  However, 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.  

3.  The fact that the applicant's unit in Vietnam was in battle is not in question.  However, nowhere in the AAR provided by the applicant is any person, including the applicant, specifically mentioned as a casualty or as a person wounded in action.

4.  Upon further review of the 2 March 1970 document which was prepared by a medical officer at the dispensary at Fort Hood, Texas, it has been determined that this medical officer made the following two separate entries related to the applicant's ears and neck:

	a.  "Ears OK wax on [right], hearing [decreased – noted by a down-arrow symbol] on left" and

	b.  "Neck small surface [fragment] in neck – doubt if origin of H.A.."

5.  While the sincerity of the applicant's claim to entitlement to award of the Purple Heart is not in question, there is no evidence in the applicant's military records, and the applicant failed to provide evidence which conclusively proves, by a preponderance of the evidence, that he was wounded or injured as a result of hostile action, that he was treated by medical personnel for wounds or injuries sustained as a result of hostile action, and that this medical treatment was made a matter of official record.  In view of the foregoing, there is insufficient basis upon which to correct his military records to show the award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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 AR20070016566, dated 18 March 2008.



      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080008958



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ABCMR Record of Proceedings (cont)                                         AR20080008958



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