IN THE CASE OF:	

		BOARD DATE:	  10 December 2009

		DOCKET NUMBER:  AR20090009156 


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 earlier request for four awards of the Purple Heart.

2.  The applicant states, in effect, that he has provided new evidence to support a third award of the Purple Heart.

3.  The applicant provides the following documents in support of his request for reconsideration:

	a.  letter from the Army Board for Correction of Military Records Board, dated 10 September 2008;

	b.  letter from the National Archives and Records Administration, dated 9 October 2008;

	c.  DD Form 214 (Armed Forces of the United States Report of Transfer); and

	d.  Department of Veterans Affairs (DVA) Decision Review Officer Decision, dated 14 April 2009.

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 AR20080009864 on 9 September 2008.

2.  The applicant has provided new evidence, which includes the letter from the National Archives and Records Administration and the DVA Decision Review Officer Decision that will be considered by the Board.

3.  The applicant was inducted into the Army of the United States on 18 August 1966.  He served in Vietnam from 25 January 1967 through 22 December 1967 while assigned to Company A, 1st Battalion, 8th Cavalry Regiment, 1st Cavalry Division.  He was retired from active duty on 30 July 1968 and placed on the Temporary Disability Retired List.  His DD Form 214 shows entitlement to one award of the Purple Heart.

4.  The 9 October 2008 letter from the National Archives and Records Administration is addressed to a representative at the Lerimer County Veterans Service Office on behalf of the applicant.  The representative was informed that the Coffelt database listing names of servicemen killed in Vietnam was consulted and there was one incident involving the 1st Battalion, 8th Cavalry, in which multiple servicemen fell.  The incident occurred on 26 May 1967 and the cause of death was listed as an air loss.  The representative was also informed that other references were searched to include:

	a.  records of the United States Forces in Southeast Asia 1950-1975 (Record Group 472);

	b.  G-1 Daily Journals of the 1st Cavalry Division which listed names on the casualty list and noted "C/227th Avn UH-ID 65-10089 5 mi East of Bong Son, 26 May 67 0657 hr, A/C landed in pinnacle LZ, dropped off troops, on list out skids caught in cargo net.  A/C yawed to right then left, then hit ground.  A/C rolled on left side and burned.  Total loss."; and

	b.  Aviation Accident Reports were searched, but there were gaps in the series.  All of 1967 was unavailable.

5.  The 14 April 2009 DVA Decision Review Officer Decision shows the applicant was granted service connection for spondylotic changes at L4-5 with disc space narrowing and endplate sclerosis (10 percent) and post-traumatic stress disorder (increased to 30 percent).  The DVA Decision Review Officer Decision indicated the applicant had been treated for low back pain in August 1966, September 1966 (physical therapy), November 1966, March 1967, and May 1967.  The decision document indicated that records from June 1967 show the applicant had injured his lower back in a helicopter crash.

6.  On 9 September 2008, the ABCMR corrected the applicant's records to show the Purple Heart (First Oak Leaf Cluster) for wounds received in action in the Republic of Vietnam on 7 December 1967.

7.  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 by medical personnel, and the medical treatment must have been made a matter of official record.  This regulation states that when contemplating award of the Purple Heart, the key issue that commanders must take into consideration is the degree in 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 the sole justification for award.  It further states that injuries or wounds which clearly do not justify award of the Purple Heart include accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.  A bronze oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Purple Heart.

8.  Title 38, U.S. Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he provided new evidence to show his entitlement to a third award of the Purple Heart.

2.  The 9 October 2008 letter from the National Archives and Records Administration indicates that an extensive search of the 1st Battalion, 8th Cavalry, records had been conducted to verify that the applicant had been injured in Vietnam in May 1967.  However, there is insufficient evidence which confirms he was wounded in action in May 1967 while serving in Vietnam.

3.  The 14 April 2009 DVA Decision Review Officer Decision shows the applicant was granted service connection for spondylotic changes at L4-5 with disc space narrowing and endplate sclerosis (10 percent) and PTSD (30 percent).  Although this document indicated the applicant had injured his lower back in a helicopter crash, there are no medical documents available which confirm this injury was the result of hostile action.

4.  There is insufficient evidence which substantiates that the applicant sustained additional wounds as a result of hostile action in Vietnam.  Regrettably, there is insufficient evidence on which to grant him additional awards of the Purple Heart.

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 AR20080009864, dated 9 September 2008.



      __________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)                                         AR20090009156



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ABCMR Record of Proceedings (cont)                                         AR20090009156



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