IN THE CASE OF:	  

		BOARD DATE:	  29 December 2010

		DOCKET NUMBER:  AR20100016783 


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, through his Member of Congress, reconsideration of his earlier request for award of the Purple Heart.

2.  The applicant states that he was wounded in Vietnam on 22 January 1970 and his captain told him he would receive the Purple Heart.  His unit, A Company, 1st Battalion, 18th Infantry, 1st Infantry Division, left Vietnam, and he was reassigned to the 199th Infantry Brigade.  His squad was assigned to a mechanized unit on that day.  The unit had tanks and armored personnel carriers.  His tank got stuck in the mud.  Their squad was ordered to form a security line and he remained on the tank manning the machinegun along with another Soldier.  As the second tank attempted to tow his stuck tank out of the mud, an explosion occurred.  The explosion injured him and killed several other Soldiers.  He was bandaged and treated for burns and wounds.  He was also seen at the hospital where doctors determined he had three perforations to his right eardrum.  Additionally, his ear was infected and he had a discharge for weeks.  He went to visit another injured Soldier in the hospital and was told by his captain he would receive the Purple Heart.  However, he never received the Purple Heart and it remains an unresolved issue.

3.  The applicant also states the criteria for award of the Purple Heart was revised to include friendly fire.  He cites an individual who was killed by friendly fire and received the Purple Heart posthumously.  He would like this Board to explain the difference between his wound and the one inflicted on the Soldier who received the Purple Heart. 

4.  The applicant provides the following previously-submitted documents:

* A letter from a former unit member
* Various chronological records of medical care, consult sheet, physical profile, audiogram, and other medical documents
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* A listing of Soldiers Killed in Action (KIA)
* Printouts of veterans profiles
* Printouts of the criteria for the Purple Heart

5.  The applicant also provides the following evidence:

* DA Form 1594 (Daily Staff Journal or Duty Officer's Log)
* DD Form 215 (Correction to DD Form 214)
* An article about another Soldier who received the Purple Heart
* A letter, dated 20 October 2009, from a former unit member
* Newspaper article about a family's pursuit of a headstone

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 AC85-07297 on 5 August 1987 and AR2002080261 on 13 March 2003.

2.  The applicant submitted a DA Form 1594, an article about another Soldier who received the Purple Heart, a letter from a former unit member, and a newspaper article about a family's pursuit of a headstone which were not previously reviewed by the ABCMR.  Therefore, they are considered new evidence and as such warrant consideration by the Board.

3.  The applicant's records show he was inducted into the Army of the United States on 17 February 1969 and held military occupational specialty 11B (Light Weapons Infantryman).  He served in the Republic of Vietnam from on or about 17 July 1969 to 16 July 1970.  He was assigned as follows:

* Company A, 1st Battalion, 18th Infantry from on or about 29 July 1969 to 
1 March 1970
* Company E, 4th Battalion, 12th Infantry from on or about 2 March 1970 to 11 July 1970

4.  He was honorably released from active duty on 10 February 1971 and he was transferred to the U.S. Army Reserve Control Group to complete his remaining service obligation.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 and his DD Form 215 show the following awards:

* National Defense Service Medal
* Combat Infantryman Badge
* Republic of Vietnam Campaign Medal with Device (1960)
* Vietnam Service Medal with four bronze service stars
* Two Overseas Service Bars
* Air Medal with Numeral 2
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14)
* Army Good Conduct Medal
* Bronze Star Medal
* Army Commendation Medal (1st Oak Leaf Cluster)
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Sharpshooter Marksmanship Qualification Badge with Machinegun Bar (M-60)
* Expert Marksmanship Qualification Badge with Grenade Bar

6.  His DA Form 20 (Enlisted Qualification Record) item 40 (Wounds) contains no entries.

7.  His name is not shown on the Vietnam casualty roster and there are no general orders in his records that show he was awarded the Purple Heart.

8.  During the processing of this case, a member of the Board's staff reviewed the Awards and Decorations Computer Assisted Retrieval System maintained by the Military Awards Branch of the U.S. Army Human Resources Command which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal Purple Heart orders for him.

9.  He submitted the following documents:

	a.  A letter, dated 19 May 2003, from a former service member and eyewitness who was present at the scene confirms a round was accidentally discharged on 22 January 1970 and led to the applicant being injured.  He concludes that neither he nor the applicant received the Purple Heart for this friendly fire incident.   

	b.  Chronological record of medical care, dated 22 and 23 January 1970, which shows the applicant was seen at the aid station for burns to the right half of his face, eyebrow, and lashes.

	c.  Consult sheet, dated 24 January 1970 shows the applicant was near a tank as it fired and he had a noticeable discharge from his right ear.  He was referred to the Ear, Nose, and Throat clinic for evaluation.

	d.  DA Form 8-274 (Physical Profile Record), dated 14 March 1970, that shows he had a perforation to his right ear drum but he was otherwise fit for duty with limitations.

	e.  Record of Medical History, dated 5 January 1971, that shows he suffered perforation to his right ear caused by an explosion in Vietnam but he was otherwise medically qualified for separation.

	f.  DA Form 1594, dated 22 January 1970, for the 1st Battalion, 18th Infantry. Several entries were made on that date that chronicled various engagements with the enemy as well as the incident that occurred with the tank.  This incident is listed as "Accidental Discharge of Tank Weapon." 

	g.  Listing of some of those reported KIA on 22 January 1970 and profiles of two individuals.

	h.  An article about a Soldier who received a posthumous Purple Heart for what appears to be an accidental discharge by a pistol. 

	i.  Letter, dated 20 October 2009, from an individual who appears to be a former unit member confirming the accident in January 1970.  He states: 

…occurred while the tanker was moving the gun tube around and we weren't firing at a target.  However, the unit had been on a 'search and destroy' patrol a good part of the day which in my opinion would have made it combat-related.  I would have thought the battalion S-1 would have put the men in for the Purple Heart as in any other incident.

	j.  A newspaper article about a Soldier who received the Purple Heart subsequent to a friendly accident. 

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.  The regulation also provides for award of the Purple Heart to individuals wounded or killed as a result of “friendly fire” in the “heat of battle” as long as the “friendly” projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.

	a.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:  injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy generated explosions.

	b.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows:  frostbite or trench foot injuries; heat stroke; food poisoning not caused by enemy agents; chemical, biological, or nuclear agents not released by the enemy; battle fatigue; disease not directly caused by enemy agents; accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; self-inflicted wounds, except when in the heat of battle and not involving gross negligence; post-traumatic stress disorders; and/or jump injuries not caused by enemy action.

11.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) stated the authority to award the Purple Heart was delegated to hospital commanders.  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.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  Each application is considered on its own merits. 

DISCUSSION AND CONCLUSIONS:

1.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather, he or she is entitled to it upon meeting specific criteria.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not the sole justification for award.

2.  The evidence of record shows the applicant sustained an injury to his face on 22 January 1970 when a friendly tank accidently discharged a round.  There is no indication that the discharge of the tank round was intended to destroy an enemy element.  The statements submitted by the applicant clearly show a tank was being towed at the time the accidental discharge occurred.  By regulation, accidents, to include explosive and other accidental wounding not related to or caused by enemy action, except when in the heat of battle and not involving gross negligence, are examples of injuries or wounds which clearly do not justify award of the Purple Heart.

3.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence 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.

4.  In this case, the applicant's name is not shown on the Vietnam casualty roster.  His DA Form 20 does not show he was wounded in action, and his service record is void of orders that show he was awarded the Purple Heart.  His record is also void of any official Army telegrams or Western Union telegrams, and there is no conclusive evidence in his service personnel records that shows he was wounded or injured as a result of hostile action or treated for such wounds.

5.  Notwithstanding the applicant's sincerity, personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam were awarded the Purple Heart directly by the hospital commander rendering treatment.  There is no evidence in the applicant's records that show the hospital commander awarded him the Purple Heart.

6.  Regrettably, the documents provided by the applicant do not conclusively show he was wounded or injured as a result of hostile action and treated for those wounds.  As such, there is insufficient evidence upon which to base award of the Purple Heart in this case.

7.  With respect to the applicant's argument that other Soldiers received the Purple Heart as a result of friendly accidents, the ABCMR decides cases on the evidence of record and each case is considered on its own merits.  As the ABCMR is not an investigative agency and in the absence of the complete facts and circumstances surrounding the award of the Purple Heart to the other individuals, the ABCMR can neither draw correlations between two individuals nor can it determine the appropriateness of specific awards presented to others.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.   In addition, if an error had been made in a prior case there is no requirement to carry a similar error into another case.

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 AC85-07297, dated 5 August 1987, and AR2002080261, dated 13 March 2003.



      _______ _   _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)                                         AR20100016783



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100016783



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1