IN THE CASE OF:	  

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090018473 


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 the Board's denial of his request for award of the Purple Heart. 

2.  The applicant states that his Department of Veterans Affairs Services Officer found medical evidence in his military medical record that shows he was wounded.  Additionally, he rebuts the fact that the Board did not favorably consider his request to award him the Purple Heart based on his personal evidence.  He states, "I wrote a letter home to tell them I had been wounded and the letter stated that we had engaged the enemy and a member of my squad stepped on a booby trap which was set up by the NVA [North Vietnamese Army] and was a result of hostile action."

3.  The applicant also states that Army Regulation 600-8-22 (Military Awards) says a wound must be the result of hostile action and evidence must be provided to show the wound required treatment and the treatment made a matter of official record.  He states, "I submitted a copy of my medical treatment record showing the wound, the date [21 July 1970] and treatment."  Additionally, he states he does not know the reason why his chain of command did not recommend him for the Purple Heart, except that at the time he was wounded, his battalion was fighting to save their firebase and they had many casualties.  He concludes by asking the Board to reconsider its initial decision, for he would not be here today except that his backpack absorbed the majority of the shrapnel from the enemy booby trap.

4.  The applicant provides a personal letter to the Board and a copy of his inquiry to his Member of Congress, dated 3 October 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 AR20090005667 on 27 August 2009.

2.  The applicant's personal letter and the letter to his Member of Congress is new evidence requiring the Board to reconsider his request.

3.  In the original finding, the ABCMR did not find evidence of record to support award of the Purple Heart, for there was no casualty report filed or medical treatment documented for wounds received in action or permanent orders published announcing award of the Purple Heart.

4.  As new evidence for the Board's consideration, the applicant provides his personal letter and his letter to his Member of Congress.  In his letter to his Member of Congress, the applicant requested the Board's initial decision be reversed and that award of the Purple Heart be granted.  He states he does not agree with the Board's discussion and conclusions, for he believes he provided sufficient evidence to show he was wounded in action.  In his letter home in 1970, he describes to his family how the North Vietnamese Army set a booby trap and then his squad engaged the enemy troops.  He states he did receive medical treatment for the fragmentary wounds to his buttocks as documented in his medical records.  Therefore, in his opinion, he has sufficient medical evidence to show he received medical treatment for his wounds.  He believes that anyone with combat experience can see that he was wounded as a result of hostile action.

5.  The Purple Heart was established by General George Washington at Newburgh, New York, on 7 August 1782 during the Revolutionary War.  The President of the United States reestablished it in 1932 per War Department General Orders Number 3.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action.

6.  Army Regulation 600-8-22 states the Purple Heart is awarded to any member who, while serving under competent authority in any capacity with one of the Armed Services, has been wounded or killed or who has died or may hereafter die after being wounded:

	a.  in any action against an enemy of the United States;

	b.  in any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged;

	c.  while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party;

	d.  as a result of an act of any such enemy of opposing armed forces;

	e.  as a result of an act of any hostile foreign force;

	f.  after 23 March 1973, as a result of an international terrorist attack against the United States or a foreign nation friendly to the United States, recognized as such an attack by the Secretary of the Army, or jointly by the Secretaries of the separate armed services concerned if persons from more than one service are wounded in the attack;

	g.  after 28 March 1973, as a result of military operations while serving outside the territory of the United States as part of a peacekeeping force; or

	h.  members killed or wounded by friendly fire.

	i.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record.

7.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) stated the authority to award the Purple Heart was delegated to hospital commanders.  Further, it directed that all personnel treated and released within 24 hours would be awarded the Purple Heart by the organization to which the individual was assigned.  Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam would be awarded the Purple Heart directly by the hospital commander rendering treatment.



DISCUSSION AND CONCLUSIONS:

1.  While the applicant consistently states he received a fragmentary wound to his buttock from a North Vietnamese Army booby trap, there is no evidence in his official military personnel file or available medical records to support his contention.  For a commander to present a Soldier with a Purple Heart, three conditions must be met.  First, the injury or wound must have resulted from hostile action.  Second, the injury or wound must have required treatment by military medical personnel.  Finally, the medical treatment must have been documented in official military medical records or reports as being wounded in action.

2.  After careful review of the applicant's records and verification with the Vietnam casualty report, there is no evidence to support the applicant's claim that he was injured as a result of actions by hostile forces, that medical authorities in a designated combat zone treated the alleged injury occurring in action, and that the medical treatment for a wound occurring in action was documented as part of an official record.  While the applicant did provide a Standard Form 600 (Chronological Record of Medical Care), dated 21 July 1970, with his initial application showing he received medical treatment for a minor fragment wound to the left buttock, this form did not state he was wounded in action or how he received the wound, just that he had a minor fragment wound.

3.  With the existing documents, it's as likely as not that the applicant's fragment wound was caused by an accident, which would not warrant a Purple Heart.

4.  There is insufficient evidence to grant his request.  Therefore, the applicant is not entitled to have his records corrected to show award 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 AR20090005667, dated 27 August 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)                                         AR20090018473



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ABCMR Record of Proceedings (cont)                                         AR20090018473



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