IN THE CASE OF:	  

		BOARD DATE:	  9 June 2009

		DOCKET NUMBER:  AR20090002796 


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 an evaluation from a physician at the Department of Veterans Affairs (DVA) Community Based Outpatient Clinic (CBOC) in Guam shows that a scar he reported was from a wound he received on 9 October 1971 while serving in Vietnam.

3.  The applicant provides a letter, dated 10 December 2008, from a Veterans Service Representative with the Guam Veterans Affairs Office; a self-authored VA Form 21-4138 (Statement in Support of Claim), dated 10 December 2008; and a letter, dated 5 May 2008, from a physician with the DVA CBOC in Guam 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 AR20080001285 on 17 April 2008.

2.  In the previous ABCMR proceedings, the applicant's request for award of the Purple Heart was denied as there was no evidence of record which showed that he was wounded as a result of hostile action and, in the absence of orders or other evidence of record showing that he was injured or treated for wounds as a result of hostile action, the eyewitness statement provided by the applicant from a retired master sergeant which was prepared more than 30 years after the fact was not sufficient as a basis for award of the Purple Heart.

3.  The applicant provided a letter, dated 5 May 2008, from a physician at the DVA CBOC in Guam.  This letter essentially stated that the applicant was a long-time patient at his clinic and that the applicant reported that he suffered a right forearm wound during his service in Vietnam.  He also stated that the applicant had a 1.5 centimeter well-healed wound on the medial aspect of his right forearm just distal to his elbow and that the applicant reported that he was hit by shrapnel while riding inside a tank while serving as an infantry Soldier in Vietnam on 9 October 1971.  Additionally, this physician described that the applicant reported that he felt a warm sensation in his arm and a significant amount of bleeding and that the applicant was treated by a medic from Texas who removed the shrapnel and treated his wound.  Further, he noted that the applicant stated that no further treatment was ever administered to him and, as a result, his injury was never documented appropriately.  This physician reiterated that the applicant indeed has a well-healed scar as previously noted.

4.  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.

5.  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.  The evidence 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.  While the physician at the DVA CBOC in Guam essentially stated that the applicant had a well-healed scar on his right forearm, the fact that he also stated that the applicant reported that he sustained a wound to his right forearm while serving in Vietnam is merely echoing the applicant's previous contention that he was wounded as a result of hostile action without providing evidence which proves, by a preponderance of the evidence, that his scar was, in fact, sustained as a result of hostile action.  As a result, this document which was prepared more than 30 years after the fact does not begin to approach the threshold of proving that the applicant's right forearm scar was the result of hostile action.

4.  While the sincerity of the applicant's claim to entitlement to award of the Purple Heart is not in question, absent evidence which conclusively shows that the applicant was wounded or injured as a result of hostile action, that he was treated by medical personnel at the time 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 Purple Heart to the applicant in this case.

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 AR20080001285, dated 17 April 2008.

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 to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.



      ____________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)                                         AR20090002796



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ABCMR Record of Proceedings (cont)                                         AR20090002796



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