DOCKET NUMBER:  AR20100007569 


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 petition to be awarded the Purple Heart (PH).  

2.  The applicant states the Board should have made its decision on a preponderance of the evidence and not relied on a sole conflicting statement contained in a DA Form 2173 (Statement of Medical Examination and Duty Status) completed more than a month after the helicopter crash.

3.  The applicant argues that the clinical record sheet completed on 19 April 1966 indicates he suffered second degree burns during a helicopter crash apparently resulting from enemy action.  He claims this form was completed by hospital admission personnel who as part of the emergency room treatment team would have immediate and more reliable information due to their immediate history taken from evacuation personnel who evacuated him from the crash site to the hospital for initial treatment.  He goes on to state the medical personnel who completed the DA Form 2173 were involved a month after the crash and would not have had access to the collateral information the emergency room personnel would have had access to when he was brought into the hospital.  He states the personnel completing the DA Form 2173 had little or no interest in whether the crash resulted from enemy action and were interested only in his rate of recovery and ultimate duty status.  He also states the DA Form 2173 makes no statement either way regarding enemy action involvement in the crash.  He concludes by stating the Army should make its decision on a preponderance of the evidence and not on inadequate or incomplete information.  

4.  The applicant provides a self-authored statement and the original Board Record of Proceedings (ROP) in support of his reconsideration 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 AR20090003908, on 11 June 2009.  

2.  During its original review of the case, the Board concluded the evidence failed to show the helicopter crash that resulted in his injuries was caused by enemy action.  It further noted there were no orders awarding the PH in his record and his name was not on the Vietnam Casualty Roster.

3.  The applicant makes a new argument that requires the Board's consideration. 

4.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 21 September 1965 through 27 August 1966.  Item 40 (Wounds) is blank and the PH is not included in the list of earned awards in item 41 (Awards and Decorations).  The applicant last audited the DA Form 20 on 26 October 1966.  

5.  The applicant’s record is void of any orders or other documents that indicate the applicant was ever recommended for or awarded the PH by proper authority while serving on active duty.  

6.  On 27 October 1967, the applicant was honorably released from active duty (REFRAD), in the rank of sergeant, after completing 2 years, 11 months, and    29 days of active military service.  

7.  There is no indication in the record the applicant petitioned for award of the PH while he remained on active duty.  

8.  During the review of this case, a member of the Board's staff again reviewed the Department of the Army (DA) Vietnam Casualty Roster.  There was no entry pertaining to the applicant on this roster.  

9.  United States Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided guidance on award of the PH in the RVN.  It stated that authority to award the PH was delegated to hospital commanders.  Further, it directed that all personnel treated and released within 24 hours will be awarded the PH by the organization to which the individual is assigned.  Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam will be awarded the PH directly by the hospital commander rendering treatment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the original Board decision in his case was not based on a preponderance of the evidence has been carefully considered.  However, the evidence does not support this claim.  

2.  By regulation, the Board begins its consideration of each case with a presumption of regularity; that is, what Army records reflect is correct and the burden of proving otherwise rests with the applicant.  

3.  In this case, item 40 of the applicant’s DA Form 20 is blank indicating he was never wounded in action, and the PH is not included in the list of awards contained in item 41.  The applicant last audited this record in October 1966 nearly 2 months after he departed the RVN, indicating the information on the record to include the entries in item 40 and 41 were correct at the time.  Further, there is no indication he pursued award of the PH in the more than a year he remained on active duty after his departure from the RVN.

4.  The USARV awards regulation in effect at the time directed that all personnel treated and released within 24 hours would be awarded the PH 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 PH directly by the hospital commander rendering treatment.  

5.  In this case, there is no indication the applicant’s organization or hospital commander awarded the applicant the PH based on the injuries he received in the helicopter crash.  This award would have been expected had the helicopter crash (his wounds) resulted from enemy action.  As a result, given his medical treatment was a matter of official record and absent any evidence of record indicating he was recommended for or awarded the PH by proper authority at the time, it is logical to presume the injuries he suffered were determined not to be the result of enemy action by the appropriate PH award authorities at the time.  

6.  The evidence of record further corroborates the conclusion the applicant’s wounds were not received as a result of enemy action with the absence of his name from the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  As a result, the preponderance of the evidence fails to support a conclusion the applicant was wounded as a result of enemy action and/or that he is eligible for the PH.  



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 AR20090003908, dated 11 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)                                         AR20100007569



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)