IN THE CASE OF:	  

		BOARD DATE:	        21 OCTOBER 2008

		DOCKET NUMBER:  AR20080010085


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 for award of the Purple Heart be reconsidered.

2.  The applicant essentially states that he was wounded by shrapnel in the chest while serving in Vietnam, but that the Purple Heart was not awarded to him and is not on his DD Form 214 (Report of Separation from Active Duty).

3.  The applicant provides a Rating Decision, dated 13 May 2008, from the Department of Veterans Affairs (DVA) 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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR2003090693, on 25 November 2003.

2.  The applicant provided a Rating Decision, dated 13 May 2008, from the DVA which granted him service connection for a shrapnel wound of the chest with an evaluation of 10 percent effective 2 November 2006.  This document also stated that the applicant's service treatment reports do not confirm this injury which he reported occurred in December 1966.  However, it appears that after the applicant was given a DVA examination on 11 April 2008, the examiner confirmed a shell fragment wound to the left chest wall which he indicated was at least 50 percent likely to have occurred in service.

3.  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, failed to produce any orders awarding him the Purple Heart.

4.  The applicant essentially stated that he was wounded by shrapnel in the chest while serving in Vietnam, but that the Purple Heart was not awarded to him and is not on his DD Form 214.

5.  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.

6.  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 for award of the Purple Heart should be reconsidered.

2.  It appears that the DVA, after the applicant underwent a DVA examination on 11 April 2008, made a presumptive determination that the applicant's chest wound was at least 50 percent likely to have occurred in service.  However, while the DVA, in its own discretion, has the authority to implement a presumptive decision-making process for veterans, the regulation governing the ABCMR states that it will begin its consideration of each case with the presumption of administrative regularity.  Based upon the evidence of record, which included the fact that there are no orders awarding him the Purple Heart, no entries on his DA Form 2-1 (Personnel Qualification Record – Part II) or DA Form 20 (Enlisted Qualification Record) showing that he sustained any wounds or injuries as a result of hostile action or that he was awarded the Purple Heart, and the fact that there is no entry for the applicant on the Vietnam Casualty Roster, the fact that the DVA determined that the applicant's chest wound likely occurred in service does not begin to approach the threshold of proving, by itself or by a preponderance of the evidence, that he in fact was wounded or injured as a result of hostile action.

3.  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.

4.  Regrettably, absent evidence which conclusively proves, by a preponderance of the evidence, that the applicant 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, there is insufficient basis upon which to award the applicant the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 AR2003090693, dated 25 November 2003.


2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service during his military career, and especially during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.



      __________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)                                         AR20080010085



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080010085



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1