IN THE CASE OF:	

		BOARD DATE:	  18 February 2010

		DOCKET NUMBER:  AR20090013747 


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:

The applicant has essentially deferred to his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's request for award of the Purple Heart in light of witness statements through the applicant's Senate representative.

2.  Counsel states the applicant has located two eye-witnesses to the incident which entitles him to award of the Purple Heart.  The statements from his fellow Soldiers substantiate that the wound was sustained while he was engaged in action with the enemy.

3.  Counsel provides notarized statements from a retired chief warrant officer three and another member of the applicant's platoon, statements from the applicant's brothers and father, and the previously-submitted medical record.

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 AC96-05912 on 12 February 1997 and reconsidered in Docket Number AR20070013120 on 20 November 2007.  It is submitted to the Board as an exception to policy because the present submissions indicate relief is warranted.

2.  His previous requests were denied because there was no available evidence showing he had been wounded in action or awarded the Purple Heart.  His name was not on the Vietnam casualty roster and, although the November 1968 medical records show he had been treated for a fragment wound, there was no evidence to show that it had been sustained as the result of enemy action.

3.  The medical records that the applicant previously submitted show that on 22 November 1968 the applicant was sent from Headquarters and Headquarters Company Aid Station to B Medical Company, 173rd Airborne Brigade, where he was treated on 22 and 23 November 1968 for a fragment wound to the right thigh.

4.  The applicant served in Vietnam with Troop E, 17th Cavalry, from 17 July 1968 through 16 July 1969.  When he was released from active duty on 4 June 1971, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) listed his authorized awards as the National Defense Service Medal, Army Commendation Medal, Parachutist Badge, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), and the Combat Infantryman Badge.

5.  Subsequently, a 26 November 1997 DD Form 215 (Correction to DD Form 214) added four bronze service stars for wear on the Vietnam Service Medal, Marksman Marksmanship Qualification Badge with Pistol Bar, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, Expert Marksmanship Qualification Badge with Machine Gun and Automatic Rifle Bars, and the Aircraft Crewmember Badge.

6.  The notarized statement from Michael M____ states that he was a member of the same platoon and was present on 21 November 1968 when the applicant sustained a wound to the right thigh from enemy fire.

7.  In the notarized statement, the retired chief warrant officer three identifies himself as having been a sergeant in the same platoon.  They were ambushed and the applicant was shot in the legs.  He relates that he remembers the date as late November 1968 because shortly thereafter when he went on leave the applicant was still in the hospital.  Upon his return, he was surprised to find the applicant still with the unit as he had expected him to be medically evacuated "Stateside."

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 the 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 by medical personnel, and the medical treatment must have been made a matter of official record.

9.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the applicant's troop was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 5 May 1965 through 26 September 1970 and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 15 April 1969 through 16 March 1971.

DISCUSSION AND CONCLUSIONS:

1.  Counsel states the applicant has located two eye-witnesses to the incident.  The statements from his fellow Soldiers substantiate that the wound was sustained during combat action with the enemy.

2.  The medical records beginning on 22 November 1968 show the applicant was treated for a wound.  The credible statements from his fellow Soldiers establish that the wound was sustained as the result of hostile action.  The requirements for the Purple Heart have been met.

3.  Furthermore, the absence of any reference to a line-of-duty investigation reinforces the conclusion that the applicant's wound was the result of hostile action.  Had he accidentally sustained such a wound, a line-of-duty determination would have been required.

4.  The applicant should be awarded the Purple Heart.

5.  The applicant is authorized the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.

6.  The above awards should be added to his DD Form 214 at this time.

7.  In view of the foregoing findings and conclusions, it would be appropriate to rectify this injustice by correcting the applicant's records as recommended below.



BOARD VOTE:

___X____  ___X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR's decisions in Docket Number AC96-05912, dated 12 February 1997, and Docket Number AR20070013120, dated 20 November 2007.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  awarding him the Purple Heart for wounds sustained in action against the enemy on 21 November 1968 and

	b.  showing that, in addition to the awards already shown on his 4 June 1971 DD Form 214 (as corrected by DD Form 215, dated 26 November 1997), his authorized awards also include the Purple Heart, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.



      ___________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)                                         AR20090013747



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ABCMR Record of Proceedings (cont)                                         AR20090013747



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