IN THE CASE OF:	  

		BOARD DATE:	  27 April 2010

		DOCKET NUMBER:  AR20090017843 


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, on behalf of her brother, a deceased former service member (FSM), requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Purple Heart.

2.  The applicant states, in effect, the FSM was awarded the Purple Heart in recognition of the fact that he sustained wounds to his head and hand while serving in the Republic of Vietnam.  She contends these wounds are corroborated by entries in the FSM's Department of Veterans Affairs (VA) Disability Rating Decision.

3.  The applicant further states that when the FSM returned home from Vietnam, his siblings all helped him unpack his luggage.  The FSM's duffel bag contained a black box and in the box was the Purple Heart along with a folded piece of paper stating the Purple Heart was awarded for injuries the FSM suffered in the line of duty or words to that effect.  The applicant attests there are eight siblings who all remember reading that document.

4.  The applicant continues that when the FSM became ill with cancer and was prescribed a very high amount of medication for the pain, he burned all of his service records, including his medical records and the document that accompanied the Purple Heart.  She is uncertain why the FSM burned his records, but they still have his medals, including the Purple Heart, proudly displayed in a case his younger brother made for him.  The applicant concludes by stating they did not know the FSM had burned his paperwork until his death.  They attempted to obtain a grave marker with the medals embedded for his grave.  Only then did they realize the FSM's DD Form 214 did not include the Purple Heart among his authorized awards and decorations.

5.  As documentary evidence in support of this request, the applicant provides copies of:

* the FSM's DD Form 214
* three photographs
* six pages extracted from the FSM's VA medical records

CONSIDERATION OF EVIDENCE:

1.  The FSM's record shows he enlisted in the Regular Army on 30 November 1964.  He completed the training requirements and was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank he attained while serving on active duty was the rank of specialist four (SP4)/pay grade E-4.  On 30 November 1967, he was honorably released and transferred to the United States Army Reserve Control Group (Reinforcement).  He had completed 3 years of active military service.

2.  Block 31 (Foreign Service) of the FSM's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam during the period 4 January 1966 to 8 January 1967.  Block 38 (Record of Assignments) of this form shows he was assigned to Company A, 1st Battalion, 14th Infantry Regiment for the duration of his tour.

3.  Block 40 (Wounds) of the FSM's DA Form 20 is blank, which indicates he did not sustain any wounds in combat, and the FSM authenticated this document with his signature in Item 47 (Signature of Individual) on 23 February 1967 upon his return to the continental U.S. after completing his tour of duty in the Republic of Vietnam.

4.  Block 41 (Awards and Decorations) of the FSM's DA Form 20 does not show award of the Purple Heart.

5.  Block 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the FSM's DD Form 214 does not show award of the Purple Heart.  

6.  The FSM's name does not appear on the Vietnam Casualty Roster.  There is no evidence in the available records which show the FSM was recommended for or awarded the Purple Heart.

7.  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 U.S. Army Human Resources Command, failed to reveal any General Orders showing the FSM was awarded the Purple Heart.

8.  The applicant provides three photographs

* two photographs of a Soldier with bandages on his head and right ring finger (no name, rank, unit insignia, dates, or locations are visible)
* a photograph of the FSM's awards, decorations, uniform items, and a flag

9.  The applicant provides one page of an unnamed and unnumbered document, dated 10 February 1986.  Block 44 (Remarks) of this form contains the entry "Pt [Patient] gives history pungee [punji] stick wound of left leg & left index finger."  Block 46 (Diagnosis) contains the entry "Healed punji stick wound of left leg & left index finger."  Block 50 (Signature of Physician - Name and Specialty (Type or Print) contains a signature of a General Practitioner, but no legible name.  The FSM's name does not appear on this form and there is no evidence of the location at which it was rendered.

10.  The applicant provides two pages extracted from a VA Rating Decision, dated 7 April 1986, pertaining to the FSM's claim of service connection for post traumatic stress disorder, punji stick wounds to left leg and left index finger, and a gastric ulcer.  Item F of this form shows the FSM stated he was wounded by shrapnel and a punji stick in his left leg.  Item D on Page 3 of this form shows service connection was denied for punji stick wounds to the FSM's left leg and left index finger, and a gastric ulcer due to the fact they were not shown in the FSM's service medical records.  There is no mention of shrapnel wounds to the head in this extract.

11.  The applicant provides a VA Form 10-1000 (Discharge Summary Sheet (Inpatient Care)), dated 8 May 1986.  This form shows the FSM was admitted to the VA Medical Center located in Phoenix, Arizona on 23 January 1986 and discharged on 7 May 1986.  The FSM was admitted for evaluation of eight diagnoses, including shrapnel to head and punji stick, left leg.  In pertinent part, the FSM informed the examining physician "While in the service, he was rendered unconscious at least once due to shrapnel injuries to the head."  An entry on Page 3 shows an X-ray of the left lower leg revealed no abnormalities.  The FSM was discharged to his home and he was judged competent for VA purposes and employable.

12.  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.

13.  There is no evidence in the available records or the documents provided by the applicant that conclusively shows the FSM sustained any injuries as a result of hostile action or that he was treated for wounds sustained as a result of hostile action.

14.  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 Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the FSM was wounded in the Republic of Vietnam and his DD Form 214 should be corrected to show award of the Purple Heart was carefully considered.

2.  The FSM's service personnel file is void of any evidence he was ever recommended for or awarded the Purple Heart.

3.  A review of ADCARS failed to reveal any general orders showing the FSM was awarded the Purple Heart.

4.  The FSM authenticated his DA Form 20 with his signature wherein the Purple Heart is not included in the list of awards he was awarded or authorized.  In effect, his signature was his verification that the information on this document, to include the list of awards, was correct at the time the documents were prepared, reviewed and issued.



5.  Although the applicant contends the VA medical documentation corroborates the FSM's wounds; they were rendered 20 years after he was discharged based totally upon the FSM's claims.  In fact, the VA denied the FSM service connection for punji stick wounds to the his left leg and left index finger due to the fact they were not shown in the FSM's service medical records.  Additionally, there was no mention of shrapnel wounds to the head in the extract from the FSM's VA Rating Decision.

6.  Although the applicant contends that the FSM was wounded by shrapnel and a punji stick while serving in the Republic of Vietnam, there is no corroborating evidence present in the available records and the applicant has failed to provide any evidence showing the FSM was wounded as a result of hostile action, that the wounds required treatment by military medical personnel, and the medical treatment was made a matter of official record.

7.  In view of the foregoing, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.

8.  In the absence of evidence to the contrary, administrative regularity is presumed in the applicant's case.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  This action in no way diminishes the sacrifices made by the FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of the FSM's service in arms.

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 for correction of the records of the individual concerned.



      _______ _   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)                                         AR20090017843



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ABCMR Record of Proceedings (cont)                                         AR20090017843



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