IN THE CASE OF:	  

		BOARD DATE:	  	  23 October 2008

		DOCKET NUMBER:  AR20080012770 


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, reconsideration of his request for award of the Purple Heart. 

2.  The applicant states, in effect, he sustained shrapnel wounds during a mortar and rocket attack on the evening of 26 March 1969 while stationed at Dong Tam base camp in the Republic of Vietnam (RVN).  He also states that he would like the Board to consider new evidence provided by two of his superior officers that were stationed with him and witnessed the event.  

3.  The applicant provides a letter from Chief Warrant Officer 3 (CW3) John F. H_____, Jr. (U.S. Army, Retired), dated 3 May 2008; a letter from Captain (CPT) Robin B. H____ (U.S. Army Retired), dated 8 April 2008; DA Form 66 (Officer Qualification Record); and 5 photographs.

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 AR20070009787 on 18 December 2007.

2.  The applicant’s military service records show he enlisted in the Regular Army for a period of 3 years on 23 September 1966.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 62A (Engineer Equipment Assistant).  He was subsequently awarded MOS 44C (Metal Working Foreman) as his primary MOS.  

3.  The applicant’s military service records contain a DA Form 20 (Enlisted Qualification Record).  Item 31 (Foreign Service) shows he served overseas in the RVN from 9 March 1968 through 26 April 1969 and Item 38 (Record of Assignments), in pertinent part, shows he was assigned to Company E,
709th Maintenance Battalion, 9th Infantry Division (RVN) from 13  March 1968 to 25 April 1969.  Item 40 (Wounds) is absent an entry and Item 41 (Awards and Decorations) fails to show he was awarded the Purple Heart.

4.  There is no medical documentation in the applicant’s military service records that shows he was wounded or treated for wounds as a result of hostile action.  In addition, a review of The Adjutant General Office, Casualty Division's Vietnam Casualty Roster confirmed that the applicant’s name is not listed on the roster.

5.  A thorough review of the applicant’s military service records revealed that there are no orders in the applicant’s records that show he was awarded the Purple Heart.  In addition, a search of the U.S. Army Human Resources Command (USA HRC), Awards and Decorations Computer Assisted Retrieval System (ADCARS) for the Vietnam Conflict failed to produce orders showing award of the Purple Heart to the applicant for wounds received in action in Vietnam.

6.  The applicant's military service records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 27 April 1969 and DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 21 July 2008.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), as corrected by the DD Form 215, shows he was awarded the Bronze Star Medal, Army Commendation Medal, Good Conduct Medal, National Defense Service Medal, Vietnam Service Medal with
1 silver service star, Republic of Vietnam Campaign Medal, Meritorious Unit Commendation, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Action Honor Medal First Class Unit Citation, Expert Marksmanship Qualification Badge with Automatic Rifle Bar, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  The DD Form 214 also shows he was honorably released from active duty on 27 April 1969 and credited with completing a total of 2 years, 7 months, and 5 days net service.

7.  In support of his request for reconsideration, the applicant provides the following documents:

     a.  A letter from CW3 John F. H_____, Jr. (U.S. Army, Retired), dated 3 May 2008, in which he states he served with the applicant in the 709th Maintenance Battalion in the RVN in 1968 and 1969 and on the evening of 26 March 1969. CW3 H_____ states, in pertinent part, “I was one of the people who saw [the applicant] just before the huge explosion created by the ammo dump being blown up by the VC [Viet Cong] during an attack on Dong Tam.”  CW3 H____ states that both he and CPT H____ were involved with the applicant’s injury before they sent him to the Dong Tam Medical Facility for treatment.  He also states, “I had always thought that [the applicant] must have gotten [the Purple Heart] as I saw him right after he was hit, and was fully aware that he had been wounded.  The only thing I can think of is that after the destruction of the ammo dump the entire base camp was in a state of total confusion.”  He further states, “Captain H____ was the Duty Officer during the attack and he was more aware of all the details of the wounds received by [the applicant], however I did see [the applicant] at that time.  Captain Robin H____’s statement gives all of the details during that night of action, and I fully concur with them.”

     b.  A letter from CPT Robin B. H____ (U.S. Army Retired), dated 8 April 2008, in which he states he was contacted by his former battalion commander of the 709th Maintenance Battalion (RVN) who had been contacted by the applicant concerning award of the Purple Heart.  CPT H____ states that he served with the applicant in the 709th Maintenance Battalion in the RVN, performed duties of a staff officer in the Tactical Operations Center (TOC), and regularly worked during the evening hours.  He also provides a description of Dong Tam Firebase and his responsibilities.

         (1)  CPT H____ states he recalls the TOC receiving a radio message from the applicant, “…telling us that [the applicant] was on the way to our location and that [the applicant] was wounded in the chin area and lower back” and “[the applicant] had been mortared while checking on the guards but was able to drive to our location which was only two or three blocks from the medical facility.”  CPT H____ states it was around midnight and he was standing outside in the road when the applicant arrived at the TOC.  He also describes how the applicant was holding a T-shirt to stop the bleeding on his chin and a poncho secured around his back with his G.I. belt holding it tight.  CPT H_____ states that the applicant proceeded to drive to the medical facility, he went back into the TOC and called the medics, and alerted them of the applicant’s imminent arrival.  CPT H____ states that a medic informed him that all the doctors were gone and there were only a couple of medics there that were cleaning up.  CPT H____ states, in effect, he forcefully instructed them to utilize their medical training and treat the applicant’s wounds when he arrived.

         (2)  CPT H____ then goes on to state, “[t]he 26th of March 1969 was a day I’ll never forget.  I took over as the Battalion, S-4 and became a primary staff officer in the battalion.  It was also the day the ammo dump blew up.”  He also describes events when he and CW3 H_____ “were both running for the bunker before the big ammo dump explosion.”  CPT H_____ adds, “[l]ater that night [the applicant] came back all bandaged up, I don’t know how many stitches he received.”  CPT H____ adds his personal perspective and concludes by stating the applicant should be awarded the Purple Heart.

     c.  A DA Form 66 (Officer Qualification Record) that pertains to CPT H____.   Item 18 (Record of Assignments), in pertinent part, shows CPT H____ was assigned to Headquarters and Company A, 709th Maintenance Battalion, 9th Infantry Division (RVN) from 9 February 1969 to 27 July 1969.  This item also shows he was assigned to Company E, 709th Maintenance Battalion, 9th Infantry Division (RVN) from 28 July 1969 to 23 August 1969.

     d.  Five photographs, 4 with markings that indicate they were taken by CPT H____ in 1969 and 1 of a newspaper article and picture.  The first photograph indicates it was taken in January 1969 and shows the bunker area where the applicant contends he was injured by shrapnel on 26 March 1969.  Three of the photographs are aerial shots with markings indicating they are of Dong Tam Fire Base (RVN) taken in 1969.  The newspaper article is dated 28 March 1969 and, in pertinent part, states “[a]n estimated 500 tons of rockets, shells and other munitions went up in a thundering series of explosions early Wednesday
[26 March 1969] when enemy mortars hit an ammo dump at Dong Tam, a major U.S. installation in the Mekong Delta.”  The article also states “…casualties were relatively light.  Two Americans were reported killed and 64 wounded.”  This document also shows a picture of a helicopter damaged in the mortar attack.

8.  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 required treatment, and the medical treatment must have been made a matter of official record.

9.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) provided, in pertinent part, for award of the Purple Heart.  The regulation stated that authority to award the Purple Heart was delegated to hospital commanders.  Further, it directed that all personnel treated and released within 24 hours will be awarded the Purple Heart by the organization to which the individual is assigned.  Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam will be awarded the Purple Heart directly by the hospital commander rendering treatment.
10.  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, in effect, that his request for award of the Purple Heart should be reconsidered based on new evidence he presents concerning shrapnel wounds he sustained during a mortar and rocket attack on the evening of 26 March 1969 while stationed at Dong Tam base camp in the RVN.

2.  The applicant’s claim that he sustained shrapnel wounds to his chin and back and the events as related by the two officers that he served with were carefully considered.  It is noted that the report in the newspaper article provided by the applicant states that the munitions in the ammo dump at Dong Tam went up in a series of explosions early on 26 March 1969 (emphasis added).  The description offered by CW3 H_____ indicates that he “saw [the applicant] just before the huge explosion created by the ammo dump being blown up by the VC during an attack on Dong Tam,…saw him right after he was hit, and was fully aware that he had been wounded.  The only thing I can think of is that after the destruction of the ammo dump the entire base camp was in a state of total confusion.”  Thus, CW3 H_____’s statement seems to indicate the applicant was injured during the mortar rocket attack on the ammo depot.  Whereas, the description provided by CPT H____ clearly states the applicant was injured while checking on the security guards.  Considering the entirety of CPT H____’s statement, it is reasonable to conclude that the applicant’s injuries occurred on the evening prior the mortar rocket attack that caused the explosion at the ammo dump as there is no indication by CPT H____ of other activity occurring at that time in the TOC, the applicant drove himself to the TOC in a jeep, CPT H____ took ample time to instruct a medic at the medical facility about the applicant’s injuries, and there were no doctors at the medical treatment facility attending to other casualties.  Thus, it is clear that the two statements offer distinctly different descriptions of the circumstances and events at the time when the applicant contends he was injured by shrapnel.  In this regard, it is noted that the applicant provides no official documentary evidence pertaining to the incident (e.g., a Staff Duty Journal containing a specific entry pertaining to the applicant’s injury, casualty report, etc.) or any record of medical treatment.  Additionally, it is also noted there is no mention made regarding treatment of the applicant’s back injury.

3.  There is no evidence in the applicant’s military service records that shows he was wounded or treated for wounds as a result of hostile action; his DA Form
20 does not show an entry in Item 40 (Wounds) or list the Purple Heart in Item
41 (Awards and Decorations); the applicant's name is not listed on The Adjutant General Office, Casualty Division's, Vietnam Casualty Roster; and there are no orders in the applicant’s military service records or in the USA HRC, ADCARS data base that show the applicant was awarded the Purple Heart.  In addition, there is no evidence in the applicant’s military service records that shows he was wounded as a result of hostile action, the wound(s) required treatment, or that such medical treatment was made a matter of official record.  In view of all of the foregoing, there is insufficient basis for awarding the Purple Heart to the applicant in this case. 

4.  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.

5.  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 AR20070009787, dated 18 December 2007.




      _______ _   _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)                                         AR20080012770



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ABCMR Record of Proceedings (cont)                                         AR20080012770



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