IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100007571 


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, in effect, reconsideration of the Board's denial of his request for the Purple Heart that was erroneously given to his brother be taken from his brother and given to him.

2.  The applicant states that when his unit was moved to a firebase that had previously been deserted, they encountered North Vietnamese Army (NVA) Soldiers at the firebase.  He was standing on top of an occupied bunker with two other Soldiers throwing grenades when all three were hit with shrapnel.  The other two men were given Purple Hearts but he was not.  His Purple Heart was mistakenly given to his brother who was some miles away from the incident.

3.  The applicant states that the statements from one of the other wounded Soldiers, his brother, and his commander should leave little doubt who the Purple Heart belongs to.

4.  The applicant does not provide any additional documents.  He defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's request for award of the Purple Heart.


2.  Counsel states that there is the potential for some confusion or error in this case since the applicant and his brother were serving in the same unit and their Social Security Numbers (SSNs) only differ by one digit.  Counsel then paraphrases the statements provide in support of the applicant's request.

3.  Counsel provides a statement from the applicant's brother, a statement from the applicant's former commander, copies of the applicant's and his brother's
DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), and a photograph of two individuals standing in front of what appears to be a bunker.

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 AR20090003554 on 9 July 2009.

2.  The statement from the applicant's brother indicates that he was given a Purple Heart in error.  It had his name on it but it should have been given to his brother who also served in Vietnam during the same time period.  He indicates that he explained the mistake to a Soldier in the personnel section of his unit and he was told the mistake would be corrected.  Unfortunately, the mistake was not corrected.  He asks that his brother be recognized for this long-overdue honor.

3.  In the statement from the applicant's former commander, the commander states that to the best of his knowledge and remembrances, the applicant was wounded as described.  He remembers that it was reported to him that both men on top of the bunker had been slightly wounded.  He concludes that he is satisfied that the applicant did indeed earn the Purple Heart.

4.  The DD Forms 214 submitted by counsel show the applicant's SSN as ***-**-***8 and his brother's SSN as ***-**-***7.

5.  The military records of the applicant and his brother show they were in the same unit in Vietnam.

6.  On 10 April 2008, the applicant's brother signed an application requesting "CORRECTION OF MILITARY RECORD:  1.  PURPLE HEART & AIR MEDAL ORDERS HAVE WRONG SOCIAL SECURITY NUMBER SHOULD BE ***-**-***7 – 2.  CIB LEFT OFF DD-214 – 3.  ARMY COMMENDATION MEDAL WITH V – AND OAK LEAF CLUSTER LEFT OFF DD-214."

7.  The ABCMR granted the applicant's brother's request, finding that the orders awarding him the Purple Heart for wounds incurred on 8 August 1969 showed his correct name, but listed his SSN as 370-**-**** instead of 379-**-****; but a DA Form 8-275-3 which documented his treatment for multiple fragment wounds to his back, upper and lower extremities on 8 August 1969 showed his correct name and correct SSN.  The ABCMR also noted that the applicant's brother's DA Form 20 (Enlisted Qualification Record) showed in Item 40, Wounds, that he was wounded on 8 August 1969.

8.  Army Regulation 600-8-22 (Military Awards) provides 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, and the medical treatment must have been made a matter of official record.  A wound is defined as an injury to any part of the body from an outside force or agent sustained as a result of hostile action.

DISCUSSION AND CONCLUSIONS:

1.  Glaringly omitted in this case is:

   a.  The reason why the applicant's brother submitted an application to the ABCMR in 2008 stating that the disputed Purple Heart was his and asked that the SSN on the orders be corrected to show his SSN; and

	b.  The reason why the applicant's commander did not take action to revoke the erroneous Purple Heart order and issue a Purple Heart order to the applicant.

2.  Since the applicant's brother's current statement contradicts his original statement, his statement that the Purple Heart is his brother's award is inadmissible.

3.  The applicant's commander did not state that he submitted the applicant for award of the Purple Heart.  He stated that the applicant was reported to have been slightly wounded.  In combat situations it was not unusual for Soldiers to treat themselves for minor wounds.  Such situations do not warrant award of the Purple Heart since medical treatment is not provided by medical personnel and the treatment is not made a matter of record.

4.  It is noted that the one digit difference in the two brothers' SSNs is the last digit and the variation of SSN on the Purple Heart order is the second and third digits.

5.  Also noted is that the treatment record for the wound shows the applicant's brother's proper SSN and the applicant's brother's DA Form 20 shows him being wounded on 8 August 1969.

6.  With the overwhelming preponderance of evidence showing that the applicant's brother was wounded on 8 August 1969, in light of the inadmissibility of the applicant's brother's statement, and the absence of the applicant's commander stating he submitted the applicant for the Purple Heart and explaining why he did not correct the "error" of the applicant's brother receiving that Purple Heart, there is insufficient 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 AR20090003554, dated 9 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)                                         AR20100007571



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)