IN THE CASE OF:	  

		BOARD DATE:	  1 June 2010

		DOCKET NUMBER:  AR20090020481 


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 request for award of two Purple Hearts (Purple Heart with Oak Leaf Cluster).  

2.  The applicant states his request for reconsideration is based on the fact the Board identified his military medical treatment documents submitted as a “collection of medical records” that were poorly identified and documented.  The Board disregarded the credibility of these medical records by repeatedly referring to his injuries and treatments on 4 March 1968 and 2 November 1968 as “alleged.”  On 4 March 1968 and 2 November 1968, he was serving as an infantryman assigned to an airborne infantry unit engaged in ground combat operations in Vietnam.  In both instances, after receiving shrapnel wounds to the left chest and left hand and later a dislocated right shoulder, he was immediately attended to by a medic.  After sustaining shrapnel injuries, his first documented treatment was not until 8 March 1968 when he was at the "C/326th Medical Battalion in Phouc Vinh.  The doctor applied local anesthetic, surgically removed the shrapnel, and sutured the wound on the left side of my chest.  After this surgery, I was released back to his unit."  No follow-up medical examination or treatment was deemed necessary unless complications occurred.  

3.  The applicant also states the dislocation of his right shoulder resulting from a grenade concussion was noted in the 9 November 1968 Standard Form 513 (Clinical Record Consultation Sheet).  This was the first medical documentation after the dislocation and after he returned from the field to his base camp.  The 
Board also stated that his injuries were not combat related, then omitted the examining surgeon’s written concerns about the dangers of him remaining in combat.  

4.  The applicant further states that the Board stated his name did not appear on the Vietnam Casualty List and used this to support the decision to deny his application.  In a letter dated 4 September 2009, a National Archives and Records Administration (NARA) archivist reported that the data file in their custody did not include records of all casualties for the period of 1961 to 1981.  In both his 4 March 1968 and 2 November 1968 injuries, the Board afforded itself the benefit of considering circumstantial medical care not provided to him to support their denial of his application.  

5.  In support of his request for reconsideration, the applicant provides copies of his Enlisted Disability Retirement Orders, a prescription from his medical doctor, and a letter from NARA.  

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 AR20090003882, on 28 July 2009.

2.  The documents the applicant provided are new evidence that will be considered by the Board.

3.  The applicant enlisted in the Regular Army on 26 October 1966.  He completed the training requirements and was awarded military occupational specialty 11B, Light Weapons Infantryman.  He served in Vietnam from 
3 December 1967 to 24 November 1968.

4.  His DA Form 20 (Enlisted Qualification Record), Item 38 (Record of Assignment), shows he was medically evacuated and placed in a patient status on 25 November 1968 at the Medical Holding Company, Fort Devens, Massachusetts.  On 29 April 1969, he underwent surgery to repair his right shoulder.  He was released to temporary restricted duty on 15 July 1969.  

5.  There is no entry in Item 40 (Wounds) of his DA Form 20 showing he was wounded in action as a result of hostile enemy action.  

6.  He was honorably released from active duty in pay grade E-5 on 5 September 1969, for the purpose of entering or returning to school (college, university, or equivalent educational institution).  He was transferred to the United States Army Reserve Control Group (Annual Training).

7.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 lists the following awards:  the National Defense Service, the Vietnam Service Medal with four bronze service stars, the Republic of Vietnam Campaign Medal, the Bronze Star Medal, the Air Medal, the Army Commendation Medal with “V” Device and One Oak Leaf Cluster, the Combat Infantryman Badge, the Parachutist Badge, the Sharpshooter Marksmanship Qualification Badge (Rife M-16), and the Sharpshooter Marksmanship Qualification Badge (Rife M-14).  

8.  The applicant again enlisted in the Regular Army on 16 January 1970 for       2 years. He served in Vietnam from 14 November 1970 to 4 March 1971.  On 11 June 1971, a Physical Evaluation Board (PEB) found him unfit for duty due a major impairment of the right humerus with frequent recurrent dislocation of the scapulohumeral joint and paralysis of the right long thoracic nerve, with a combined rating of 40 percent.  The Narrative Summary for the PEB is not available.  The PEB found his disability received in line of duty as not a direct result of armed conflict and was not caused by an instrumentality of war and incurred in line of duty during a period of war as defined by law.  On 21 June 1971, he concurred with the findings and recommendations of the PEB and waived his rights to a formal hearing.  

9.  On 10 August 1971, he was honorably retired, due to a permanent disability.  Item 24 of his DD Form 214 shows the following awards:  the Vietnam Service Medal and the Republic of Vietnam Campaign Medal with 1960 Device.  

10.  The applicant's Standard Form 513 (date illegible) stated he first dislocated his right shoulder in August 1967 while he was attending jump school.  This form also stated he had recurrent dislocations 7 times since then.  He was later seen in orthopedics and after an examination it was recommended he be hospitalized and medically evacuated from Vietnam for an appropriate course of action.  

11.  The applicant submitted a copy of his disability retirement orders that show he was released from active duty and placed on the retired list.  He also submitted a copy of a letter from NARA wherein he was advised the data file (known as the US Army Casualty Information System) in their custody did not include records for all casualties for the period of 1961 through 1981.  They searched that data file for his records and did not find any records listed under his name, service number, or social security number.  

12.  The prescription the applicant submitted, dated 18 August 2009, states the applicant had a surgical sutured scar of the left chest and a small scar of the left dorsal hand.

13.  A current review of the Vietnam Casualty Roster (different from the US Army Casualty Information System) does not contain the applicant's name and there are no medical treatment records available to show how or when he might have been wounded or injured.  

14.  A current review of the Awards and Decorations Computer Assisted Retrieval System of the records of the applicant's unit during the time frame he served in Vietnam failed to show orders were published authorizing the applicant award of the Purple Heart.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The regulation governing award of the Purple Heart specifically states that in order to support award of the Purple Heart, there must be evidence confirming the wound for which the award is being made was received as a direct result of, or was caused by enemy action, that the wound was treated by medical personnel, and a record of this treatment must have been made a matter of official record.

2.  The available evidence contains no orders, or other documents confirming the injuries the applicant received to his chest and hand were caused by participation in direct or indirect combat operations while serving in Vietnam, that he received treatment by a medical personnel, and that a record was made of the medical treatment.

3.  The available evidence also does not show he was ever recommended for the Purple Heart by proper authority.  Therefore, absent corroborating evidence confirming his account of how he received his injury (medical documentation, chain of command supporting letters, etc.), the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  

4.  The evidence of record also shows the applicant initially injured his right shoulder through a parachute jump, he was treated and continued to perform his duties.  His contention that the injury occurred as a result of a grenade concussion is not supported by the available evidence.  In fact, there is no medical evidence to confirm what caused the dislocation of his right shoulder.  There is no mention that this injury was rendered an instrumentality of war in the PEB.  

5.  His contentions and evidence submitted in this request were carefully considered.  However, he has not satisfactorily shown an error or injustice exists in his record concerning award of the Purple Heart.  

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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 AR20090003882, dated 28 July 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)                                         AR20090020481





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ABCMR Record of Proceedings (cont)                                         AR20090020481



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