IN THE CASE OF:	  

		BOARD DATE:	  18 November 2010

		DOCKET NUMBER:  AR20100026430 


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, in a letter to his Member of Congress, that he was wounded in battle on 25 February 1968, while serving with Company C, 1st Battalion, 327th Infantry, in Vietnam.  He was a telephone operator for his commander, Captain (CPT) J____ A____ W____, conducting a search and destroy mission near the village of Hue Phu Bai.  Upon approaching the village, a land mine was detonated near the lead element and several men were wounded or killed.  He and CPT W____ were knocked into a rice patty.  He helped administer first aid to wounded personnel while his CPT called for a medical evacuation.  Prior to the helicopter arrival, they started receiving mortar rounds.  A mortar round landed near his location.  He felt pain in his knees and fell to the ground.  His leg was bleeding profusely because a piece of shrapnel had hit and injured it.  He was taken to a medical tent near the village for immediate surgery and was subsequently transferred to a hospital near Saigon.  He stayed in the hospital until he was able to get on crutches and was then sent home.  After getting home to Michigan, he sent his medical records to a Department of Veterans Affairs (VA) hospital.  For unknown reasons, the VA hospital lost his medical records, including the official medical documents related to his injury.  It took many years before the VA admitted the loss and awarded him service-connected disability compensation.  However, the Purple Heart remains an unresolved issue.

3.  The applicant's Member of Congress states the applicant sustained an injury in Vietnam that should entitle him to the Purple Heart.  He fully understands the need for medical documentation; however, since the applicant's medical records were lost, there is sufficient evidence to corroborate his injury.  This evidence is in the form of two letters from the applicant's former company commander, two letters from the VA, two sworn letters from individuals who certified the receipt of a telegram of the injury at the time, and a recent medical discharge related to the knee/leg wound.  The Member of Congress feels the applicant should not be penalized for the loss of his medical records as there is abundant evidence to show his entitlement to the Purple Heart.

4.  The applicant and/or his Member of Congress provide:

* two letters (one of which was previously submitted) from the former company commander
* letter from the Disabled American Veterans
* VA rating decision
* sworn statements from the applicant's aunt and his brother
* medical discharge sheet

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 AR20050002477 on 17 November 2005.

2.  The applicant submitted one letter, a letter from the Disabled American Veterans, his VA rating decision, two sworn statements, and a medical discharge sheet which were not previously reviewed by the ABCMR.  Therefore, they are considered new evidence and as such warrant consideration by the Board.

3.  His records show he was inducted into the Army of the United States on 3 May 1966 and held military occupational specialty 56C (Petroleum Storage Specialist).  He served in the Republic of Vietnam from on or about 22 June 1967 to on or about 23 April 1968.  He was assigned as follows:

* Company C, 501st Supply Brigade, from on or about 22 June 1967 to on or about 3 November 1967
* Company C, 1st Battalion, 327th Infantry, from on or about 4 November 1967 to on or about 23 April 1968

4.  He was honorably released from active duty on 25 April 1968 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 (Armed Forces of the United States Report of Transfer or Discharge) and his DD Form 215 (Correction to DD Form 214) show the following awards:

* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14)
* Parachutist Badge
* Vietnam Service Medal with three bronze service stars
* Army Good Conduct Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation
* Bronze Star Medal with "V" Device

6.  He was awarded the Bronze Star Medal with "V" Device for heroism in ground combat against a hostile force in the Republic of Vietnam on 25 February 1968.  General Orders Number 3252, issued by Headquarters, 101st Air Cavalry Division, on 7 July 1968, cited the following action:

On 25 February 1968, Company C, 1st Battalion (Airborne), 327th Infantry, was conducting a combat operation in the vicinity of Phu Loc, Republic of Vietnam.  A command-detonated mine wounded four men in the lead element.  Before they could be reached, the element began to receive heavy mortar fire.  [Applicant], serving as a radio-telephone operator, with complete disregard for his own personal safety rushed from his relatively safe position behind a rice paddy wall into the open rice paddy to administer first aid to the wounded men.  He stayed with the wounded men until the mortar attack was silenced by friendly artillery fire and a medical evacuation helicopter could be called in.

7.  His DA Form 20 (Enlisted Qualification Record) which would have listed any combat injuries in item 40 (Wounds) is not available for review with this case.  Additionally, 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 any Purple Heart orders on file for him.

9.  The applicant's medical records show he underwent a separation physical on 25 April 1968 and was found medically qualified for separation.  No combat injuries or wounds are recorded on his medical records; however, an entry "scar to left leg" was entered on his Standard Form 88 (Report of Medical Examination).  Additionally, an entry "fragment wounds both legs" was entered on his Standard Form 93 (Report of Medical History).  The medical records also note he was treated for sores in his leg in January 1968 and jungle rot in February 1968.

10.  He previously contended that he should be awarded three awards of the Purple Heart for injuries he sustained on 27 November 1967 to his lip, face, and ear during Operation Wheeler and an injury on 25 February 1968 when a land mine detonated causing him severe left knee damage that also resulted in his hospitalization at Hue Phu Bai.  He did not list the date or circumstances of the third injury.

11.  He submitted the following documents:

	a.  a letter, dated 23 June 1970, from CPT W____ wherein the CPT states that he wrote this statement subsequent to a phone conversation with the applicant.  The applicant was under his command in December 1967 when they were at the Cambodian border.  The applicant received a light shrapnel wound in the leg while in contact with the enemy.  To his knowledge, the applicant did not receive the Purple Heart that he recommended him for.  He adds that the applicant received another "line-of-duty" wound to his face, but it was not a result of enemy action and no Purple Heat was involved to the best of his knowledge.

	b.  a second letter, dated 22 October 1993, from CPT W____ wherein the CPT states that the applicant was in Company C, 1st Battalion, 327th Infantry, and he was wounded on two occasions.  He was wounded during Operation Wheeler near Chu-Li when he was hit with shrapnel.  He was wounded a second time during the Tet Offensive in 1968 in Hue Phu Bai after which he was hospitalized.  He was awarded a Bronze Star Medal for his actions. 
He concluded that, although his memory may not be totally accurate, he believed the applicant served with honor and distinction.

	c.  a letter, dated 8 August 2010, from the Disabled American Veterans National Service Officer Supervisor wherein the author recounts the VA's loss of the applicant's medical records and the applicant's long appeal to ultimately receive service-connected disability compensation.  The facts of his case confirm his participation in combat operations and the medical evidence of record confirms shell fragment wounds to his knees, upper lip, and left ear.  He believes the applicant met the requirements for award of the Purple Heart.

	d.  a VA rating decision, dated 21 May 2004, wherein the examiner states that a clear and unmistakable error was found in the grant of service-connection for wound, scar, superficial right leg.  It appears the examiner formerly confused the left leg with the right leg.  The location of the shell fragment wound scar was corrected to reflect the left leg instead of the right leg.

	e.  a sworn statement, dated 1 March 2010, from the applicant's aunt who states the applicant's mother received a telegram in March 1968 saying the applicant was wounded in Vietnam and he was in a hospital.  He returned home at the end of April 1968.  His left leg was seriously damaged which caused his medical problems.

	f.  a sworn statement, dated 23 February 2010, from his brother who states that in the winter of early 1968, his parents received a letter stating the applicant had been wounded in Vietnam.  He returned home in the spring of the same year and he had a large wound on his left leg that continued to bother him.

	g.  a discharge summary report, dated 1 January 2010, that shows the applicant underwent left total knee arthroplasty.

12.  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.

13.  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.

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 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.

3.  In this case, the applicant's name is not shown on the Vietnam casualty roster, his DA Form 20 is not available for review, his service record is void of any orders that show he was awarded the Purple Heart, his record is 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.

4.  The former company commander states that he recommended the applicant for the Purple Heart for a combat wound in December 1967.  It is presumed he is referring to the 27 November 1967 date previously contended by the applicant.  However, this injury is neither listed anywhere in the applicant's personnel service records nor is it reflected on the Vietnam casualty roster.  Additionally, there is no record of this recommendation or approval by the approval authority or orders issued to confirm his entitlement to this award.

5.  The applicant also contends he was injured by a land mine detonation on 25 February 1968 that caused him severe left knee damage.  Yet, the citation for the Bronze Star Medal with "V" Device approved on 7 July 1968 does not mention a combat wound or injury.  On the contrary, the citation shows the applicant rushed from his relatively safe position behind a rice paddy wall into the open rice paddy to administer first aid to the wounded men and he stayed with the wounded men until the mortar attack was silenced by friendly artillery fire and a medical evacuation helicopter could be called in.  It is unclear why the citation did not note his injury.

6.  Notwithstanding the applicant's aunt's and brother's sincerity, there is no record of a Western Union telegram or an official Department of the Army telegram in the applicant's records regarding a combat injury.

7.  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 his records that the hospital commander awarded him the Purple Heart.

8.  Although the VA awarded him service-connected disability compensation for a scar that was later revised to wound, it is unclear that this scar or wound was caused by enemy action or that the applicant was treated for this wound.  His service in Vietnam and his sincerity with regard to the information he submitted to the VA are not in question.  However, the VA's analysis of service-connected disability compensation does not establish eligibility for any awards.

9.  Although his medical records refer to "fragment wounds on both legs," it is unclear what date these wounds occurred, what caused them, or the circumstances surrounding such injury and/or any subsequent medical treatment.

10.  The former company commander also states the applicant suffered another line-of-duty wound to his face that did not result from enemy action.  It is presumed this is the same wound the applicant previously stated should have qualified him for award of the Purple Heart, despite his former company commander's attesting that it was not caused by enemy action.

11.  Regrettably, the documents provided by the applicant, either taken separately or combined, 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.

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 AR20050002477, dated 17 November 2005.



      ____________XXX___________
                 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)                                         AR20100026430



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ABCMR Record of Proceedings (cont)                                         AR20100026430



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