IN THE CASE OF:	  

		BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090011513 


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 earlier petition to be awarded the Purple Heart (PH).  

2.  The applicant states, in effect, that he would like to have his case reconsidered because he had a hearing on this with the Department of Veterans Affairs (VA) in Louisville, Kentucky, and he has been to the doctors over and over about his back.  He states that while serving in the Republic of Vietnam (RVN), his unit came under attack and he sustained an injury to his back.  He indicates that there might be something on the unit roster about what happened and it is not his fault the injury was not made a part of the record.  He claims he was hit in the back while they were under attack and he has been seeing doctors for years for this injury.  He claims it is only fair that this incident is looked into a bit more and he does not understand why something that happened in the line of duty is ignored.  

3.  The applicant provides a self-authored statement and VA Hearing Proceedings in support of his 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 AR20080000406, on 26 June 2008.

2.  The applicant provides a self-authored statement and VA hearing proceedings that are considered new evidence and require reconsideration.

3.  During its original review of the case, the Board found insufficient evidence to confirm that the shell fragment wound/contusion the applicant sustained to his upper back was a result of enemy action while serving in the RVN.  It further determined there was no evidence of record that indicated the applicant was ever recommended for or awarded the PH by proper authority while serving in the RVN.  As a result, it concluded there was an insufficient evidentiary basis to support award of the PH in the applicant's case.  

4.  The applicant's record shows he enlisted in the Regular Army on 12 August 1966.  He was trained in and awarded military occupational specialty (MOS) 62G (Quarryman), and specialist four (SP4) was the highest rank he attained while serving on active duty.  

5.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 1 May 1967 through on or about 25 April 1968.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to 
94th Engineer Detachment during the period 1 May 1967 through 22 August 1967; and to Company C, 27th Engineer Battalion during the period 23 August 1967 through 25 April 1968, and that he performed duties in MOS 62G as a quarry machine operator in both units.  Item 40 (Wounds) is blank and the PH is not included in the list of earned awards entered in item 41 (Awards and Decorations).  

6.  The applicant's Official Military Personnel File (OMPF) contains a DA Form 
8-275-2 (Clinical Record Cover Sheet), dated 24 June 1968, which shows he was placed on quarters for 48 hours after sustaining a contusion to his back.  It also contains a notation "details of the trauma unknown."  It also contains a DD Form 728 (Admission Request), dated 22 June 1968, which contains a checked box indicating alcohol was involved in the applicant's injury.   

7.  The applicant's OMPF is also void of any orders or other documents that indicate he was recommended for or awarded the PH by proper authority while serving on active duty.  In addition, there are no medical treatment records or documents indicating he was ever treated for a wound he received as a result of enemy action.

8.  On 13 August 1969, the applicant was honorably released from active duty (REFRAD) after completing 3 years and 2 days of active military service.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he earned the following awards during his active duty tenure:  National Defense Service Medal, Vietnam Service Medal, RVN Campaign Medal, Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar, Marksman Marksmanship Qualification Badge with Rifle (M-16) Bar, and 2 Overseas Service Bars.  

9.  The VA proceedings that the applicant provided show that he testified that he sustained the injury to his back in 1968, while serving in the RVN.  He stated that while on a rock crusher at the rock quarry someone hollered they were under fire and while he was coming off the rock crusher, he was hit by something and this caused him to fall and land face down.  He further stated that two men came and rescued him and took him to the field medic where he was treated for the wounds he sustained to his back.  The applicant provided no documentation of the final outcome of the VA hearing.  

10.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant's name was not included on this list.  Additionally, a review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973, maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for the PH for the applicant.

11.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to support award of the PH there must be evidence showing that the wound for which the award is being made was received as a result of enemy action, that it was treated by medical personnel, and a record of this treatment must have been made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his back injury was the result of enemy action and the new evidence he submitted was carefully considered.  However, by regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that it required treatment by military medical personnel, and a record of the medical treatment must have been made a matter of official record.  

2.  The applicant's record contains a DA Form 8-275-2DD and DD Form 728, which show he was hospitalized and treated for a back contusion between 
22 and 24 June 1968.  However, these documents note the details of the trauma were unknown and indicate alcohol was involved in his injury.  

3.  The applicant's record is void of any other medical treatment records for this back condition that indicates it was sustained as a result of enemy action.  In addition, item 40 of his DA Form 20 is blank, which indicates he was never wounded in action and the PH is also not included in the list of awards contained in Item 41, and his OMPF is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority.  Finally, his name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  As a result, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Therefore, it would not be appropriate to grant the requested relief 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 the requirement for award of the PH or that would support amendment of the original Board decision in this case.  

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 AR20080000406, dated 26 June 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)                                         AR20090011513



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ABCMR Record of Proceedings (cont)                                         AR20090011513


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