IN THE CASE OF:	

		BOARD DATE:	  23 February 2010

		DOCKET NUMBER:  AR20090016885 


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 award of the Purple Heart.

2.  The applicant states that the original Board's decision missed the Department of Veterans Affairs (DVA) Board of Veterans' Appeals (BVA) evidence of its possession which supported his claim and relied solely on an incorrect date used in an earlier section of the DVA's decision letter.  He also states:

	a.  The primary justification for the denial is that the Board holds that he claimed that his injury occurred in April 1970 which was before he entered the Army in October 1970.  However, he never claimed that the injury occurred in April 1970; his injury occurred in April 1972.  The Board chose to rely on an incorrect date from an earlier portion of a VA letter and ignored the correct date given in the same document in the BVA's conclusive statement awarding him service-connected disability compensation for his injury which was sustained in the line of duty.

	b.  The original Record of Proceedings referred to the BVA decision letter, dated 22 December 1998, when it reported that he had stated that during a supply operation in early 1970 while he was located next to a heavy truck when a grenade thrown by an enemy Soldier detonated near him and hit areas on his left hand, right knee, and face.  This information was taken directly from the Analysis of Claim section of the BVA decision which awarded him service-connected disability compensation.

	c.  In its concluding statement, the BVA decision used the correct date of the injury of April 1972 and stated that "the examination report clearly demonstrates the likelihood of a link between post-traumatic stress disorder and the April 1972 incident which occurred during the veteran's carrying out occupational duties within his unit."

3.  The applicant provides a copy of the previously-submitted DVA BVA decision, dated 22 December 1998, in support of his request.

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 AR20090003770 on 30 June 2009.

2.  The applicant submitted a new argument in the form of a self-authored statement which was not previously reviewed by the ABCMR.  Therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant's records show he enlisted in the Regular Army for a period of 3 years on 28 October 1970.  He completed basic combat and advanced individual training and was awarded military occupational specialty 63C (Track Vehicle Mechanic).  He was honorably released from active duty on 14 April 1972 in the rank/grade of specialist four/E-4.

4.  The applicant's records further show that he served in the Republic of Vietnam from on or about 28 July 1971 to on or about 13 April 1972.  He was assigned to Headquarters and Headquarters Company, 185th Maintenance Battalion.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal with Device (1960).  Item 24 does not list award of the Purple Heart.

6.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) contains no entry.

7.  The applicant's name is not shown on the Vietnam casualty roster.

8.  There are no general orders in his records that show he was awarded the Purple Heart.

9.  During the processing of this case, a member of the Board's staff reviewed the Awards and Decorations Computer Assisted Retrieval System maintained by the Military Awards Branch of the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any Purple Heart orders on file for the applicant.

10.  The applicant's medical records are not available for review with this case.  However, he previously submitted copies of sick-call slips dated 30 May 1972 that show "shrapnel removal from right knee cap."

11.  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 an 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart.

2.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to 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.

3.  The applicant's service in Vietnam and his sincerity with regard to the date he listed in his DVA appeal are not in question.  However, the DVA's analysis of service-connected disability compensation does not establish eligibility for any awards.

4.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence 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.  In this case, the applicant's name is not shown on the Vietnam casualty roster; his DA Form 20 does not document any combat wounds; his record is void of any orders that show he was awarded the Purple Heart; and there is no evidence in his service personnel records that shows he was wounded or injured as a result of hostile action or treated for such wounds.

5.  Notwithstanding the applicant's sincerity, in the absence of additional documentation that conclusively shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart 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 AR20090003770, dated 30 June 2009.



      ____________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)                                         AR20090016885



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ABCMR Record of Proceedings (cont)                                         AR20090016885



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