IN THE CASE OF:	  

		BOARD DATE:	       21 August 2008

		DOCKET NUMBER:  AR20080010586 


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 reconsideration of his request to be awarded the Purple Heart.

2.  The applicant states, in effect, that while he thanks the Board for its previous reconsideration of his request, he is frustrated by the Board's decision which is painfully difficult to accept.  He again contends that he was wounded as a result of hostile action on 3 May 1968 in a grueling, well-documented, 14-day battle with the North Vietnamese Army (NVA) in and around Nhi Ha.  Many of the other Soldiers who were aware of his wound, perished during the days following.  Because of the loss of life, he has had difficulty through the years locating fellow Soldiers with intimate knowledge of the events.  He is again submitting affidavits from fellow Soldiers, to include his company medic.  The applicant contends the medic's testimony to be most pivotal in his effort to correct what he feels to be a glaring injustice in the denial of a Purple Heart.  

3.  The applicant provides copies of a Department of Veterans Affairs (DVA) Rating Decisions, dated 25 January 2008 and 9 May 2005; an affidavit from a fellow Soldier in the machine gun squad; an affidavit from the company medic; pictures of fellow Soldiers; and a copy of his previous petition for a Purple Heart with associated witness statements.





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.  The applicant's reconsideration was considered in ABCMR Docket Number AR2007002161, on 4 June 2007.

2.  The applicant served in the Regular Army from 18 August 1967 through
17 August 1970.  He served in the RVN from 5 February 1968 through
4 February 1969 as a member of Company A, 3rd Battalion, 21st Infantry.  

3.  In its previous reviews of the case, the Board noted the applicant's record did contain entries indicating that he had been wounded in action; however, his official record was void of any orders or other documents indicating that he had been recommended for or awarded the Purple Heart.  It also noted that his name did not appear on the Vietnam Casualty Roster and the Purple Heart was not included in the list of authorized awards contained on the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  His DA Form 20 (Enlisted Qualification Record) did not show any entry in item 40 (Wounds) and did not list the Purple Heart in item 41 (Awards and Decorations).  There were no medical records contained in the available records.  The Board finally concluded that absent any evidence of record to corroborate the information contained in the third-party statements provided by the applicant and/or that he was awarded the Purple Heart by proper authority, the applicant had not met the regulatory burden of proof necessary to support award of the Purple Heart. 

4.  The applicant provides an affidavit from the senior medic in A Company, 3rd Battalion, 21st Infantry who attests that he was present during the Battle for Nhi Ha.  He indicates that each platoon was supposed to have a medic, but due to battle death and a shortage of medics, many troops treated themselves leaving the medics to treat the more seriously wounded.  It was an intensely stressful and confusing time for everyone.  He personally attended to dozens of men and he does remember the applicant being in the field for several months.  An injury such as the applicant's would not have required immediate evacuation; the injury was treatable in the field as long as it did not become infected.  He remembers that the applicant was treated by Medic Hayes and that there would have been little or no follow up treatment by him (the senior medic) unless the applicant's wound would have become infected.  He believes it was a combination of errors that kept the applicant from being awarded the Purple Heart.  It is the duty of the platoon medic to annotate the information for award of the Purple Heart and it was overlooked in the applicant's case.  This affidavit is new evidence.
5.  The applicant provides a copy of an affidavit from a fellow Soldier who was in the machine gun squad.  He recounts the circumstances surrounding the battle of Nhi Ha and states that he noticed the applicant was "fooling around with his leg" and that his pants were ripped and bloody.  The wound on his leg became infected and he just kept digging the pus out each day with the tip of his bayonet, and several days later sought treatment from a medic.  He does not know whether the treating medic recommended the applicant for a Purple Heart.  This affidavit is new evidence.

6.  The applicant provided copies of his DVA Rating Decisions showing that he is 100 percent service-connected for prostate cancer, post-traumatic stress disorder, and tinnitus.  These decisions do not show that he was wounded as a result of hostile action in the RVN.

7.  The applicant provided copies of his previous petition to the Board for award of the Purple Heart with associated supporting statements.  These documents were considered by the Board in its previous decisions and are not new evidence.

8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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 required treatment, and the medical treatment must have been made a matter of official record.  This regulation further states that there is no time limit on submission of requests for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his petition to be awarded the Purple Heart and supporting statements he provided were carefully considered.  

2.  By regulation, in order to support award of the Purple Heart, the applicant must show 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 was made a matter of official record.

3.  As noted in the Board's previous reconsideration, the applicant lacks specific evidence to show that his wound was sustained as a result of enemy action.  Although he provided an affidavit from the senior medic in his unit and a fellow Soldier in the machine gun squad, neither of these individuals witnessed the alleged event, the senior medic did not provide any contemporaneous medical treatment to the applicant, and neither statement specifically attests that the applicant's wound was sustained as a result of hostile action.  Regrettably, absent any evidence to show that the applicant's wound was a result of hostile action, there is an insufficient basis upon which to award the Purple Heart. 

4.  The applicant provided copies of his DVA Rating decisions.  These documents do not show the applicant was wounded as a result of hostile action.

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would warrant a change in the Board's previous decisions.  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 to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ___X____  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.




      _______ _   X______   ___
               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)                                         AR20080010586



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ABCMR Record of Proceedings (cont)                                         AR20080010586



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