IN THE CASE OF:	  

		BOARD DATE:	  20 December 2011

		DOCKET NUMBER:  AR20110010580 


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 request for award of the Purple Heart. 

2.  The applicant states that contrary to the Board's inaccurate finding that his injury resulted from the accidental explosion of a 155mm howitzer at his firing position, the medical evidence does not support this finding.  His 155mm howitzer did not explode.  His howitzer, with five adjoining guns, was fully operational and engaged in the heat of battle with the enemy within a one-mile radius with the full intent of inflicting damage or destroying enemy troops or equipment.  He and other members were in direct contact with an artillery observer entrenched with the 5th Infantry Division.  He was on a direct firing mission and he could see flashes as the rounds hit the ground.  His perforated ear drums and deafness were caused by an agent.  During the latter part of the firing mission, the tubes of the howitzer traversed approximately 20% to the left bringing the tubes much closer to his standing position.  He was manning the outside ammunition control for the number 4 gun.  It was during this time and the next six barrages that he received his perforated eardrums and deafness.  Due to the terrain, the howitzers were staggered and placed close together.  The number 3 gun was 4 feet above his head, 8 feet to the rear, and 12 to 15 feet away to the right from his standing position.  The number 2 gun level was probably 7 feet above his head, 15 feet to the rear, and 20 feet away.  He opines that the projectiles passing over his head knocked him to the ground, simultaneously perforating his eardrums and causing deafness.  All fired projectiles were targeting the enemy.  Friendly fire should not be ruled out.  The placement of the guns and the line of fire was not his idea.  He did what he had to do.  
3.  The applicant provides copies of his previously submitted medical records and an internet printout regarding the M-109 155mm howitzer.

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 AR20100022457 on 8 March 2011.

2.  The applicant submitted an informational internet printout pertaining to the 155mm howitzer, which was not previously reviewed by the ABCMR.  Therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant enlisted in the Regular Army (RA) on 17 April 1966 and he held military occupational specialty (MOS) 13B (Field Artillery Crewman).  He served in Vietnam with the 6th Battalion, 14th Artillery from 27 October 1966 to 26 October 1967.  

4.  He was honorably released from active duty on 3 December 1968.  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) for this period does not show the Purple Heart.

5.  He enlisted in the RA on 10 July 1969 and held MOS 76Y (Unit Supply Specialist).  He arrived in Vietnam on 27 July 1968 and he was assigned to Battery A, 5th Battalion, 4th Artillery.  

6.  On 28 August 1968, he was seen at the battalion aid station.  His health records show while he was at the firing range, two 155 mm rounds went off resulting in his deafness.  He was not wearing earplugs at the time.  

7.  Additional medical documents show his hearing was gradually returning and that he was prescribed medications and/or ointments.  However, he continued to complain of hearing problems.  He was admitted to the 95th Evacuation Hospital and then the 249th General Hospital, where he underwent a series of examinations and/or audiograms.  However, this document does not show his hearing loss was caused by the enemy or incurred while engaging the enemy.

8.  He was ultimately evacuated on 25 October 1968 to Walter Reed Army Medical Center.  His aero-medical evacuation sheet shows he was diagnosed with conductive hearing loss, left ear, traumatic, and resulting from an explosion. He underwent various audiometric evaluations and continued treatment through 28 November 1968.  Again, subsequent medical documents do not show his hearing loss was caused by the enemy or incurred while engaging the enemy.

9.  Item 40 (Wounds) of his contemporaneous DA Form 20 (Enlisted Qualification Record) does not show any combat wounds and his name is not shown on the Vietnam casualty roster. 

10.  He was honorably discharged on 23 January 1972 for immediate reenlistment.  Item 24 of his DD Form 214 for this period does not show the Purple Heart.

11.  He reenlisted on 24 January 1972 and he was discharged on 18 September 1975.  He reenlisted on 19 September 1976 and served through multiple reenlistments in a variety of stateside or overseas assignments.  

12.  There is no indication on his subsequent personnel or medical records that he was wounded as a result of hostile action or in the heat of battle.  Additionally, his records do not contain official orders awarding him the Purple Heart.  

13.  He was ultimately retired on 31 January 1987 and placed on the retired list in his retired rank/grade of sergeant first class/E-7 on 1 February 1987.  

14.  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.

15.  He submitted an internet informational printout regarding the history, design, specifications, nomenclatures, and variants of the M109 155mm howitzer.

16.  Army Regulation 600-8-22 (Military Awards) provides 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.

17.  Included as part of the Department of Defense Appropriations Act for Fiscal Year 1994 (DODAA for FY 1994) was an amendment to the rules governing award of the Purple Heart.  While the original rules established that the Purple Heart would be awarded to individuals killed or wounded as a result of hostile action, the amendment enabled the Secretaries of each department to award the Purple Heart to members of the armed forces who were killed or wounded in action by weapon fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States.  This ruling, in effect, granted the Service Secretaries the authority to award the Purple Heart to individuals directly engaged in armed conflict that were killed or wounded as a result of "friendly fire."

18.  As a result of the DODAA for FY 1994, Army Regulation 600-8-22 was amended and, in pertinent part, 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.  However, consistent with any award of the Purple Heart, substantiating evidence must be provided to verify that the wound was sustained by "friendly fire" while in the "heat of battle," the wound must have required treatment, and the medical treatment must have been made a matter of official record.

19.  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.  In order to substantiate a claim for award of the Purple Heart, documentary evidence must be provided to verify that the wound was the result of hostile action or as a result of "friendly fire" in the "heat of battle," the wound must have required treatment, and the medical treatment must have been made a matter of official record.  

2.  While the applicant's medical records clearly show he was medically evacuated, admitted to various hospitals, and underwent treatment for perforated ears, there is insufficient evidence to support his contention that his injury was the result of hostile action or as a result of "friendly fire" in the "heat of battle." 

3.  The available evidence supports a finding of an injury that occurred on 28 August 1968 that resulted from the explosion of a 155mm howitzer at his firing position.  Additionally, although concussion injuries received as a result of enemy explosions may qualify for award of the Purple Heart, accidental explosions may not.  

4.  His sincerity and recollection of what occurred in August of 1968 are noted.  However, they are not supported by sufficient evidence that conclusively confirms his injury was caused by a friendly projectile or agent that was released with the intent of destroying the enemy.  

5.  Therefore, in the absence of official documentary evidence, the applicant had not met the burden of proof necessary to support 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100022457, dated 8 March 2011.



      _______ _   _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)                                         AR20110010580



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ABCMR Record of Proceedings (cont)                                         AR20110010580



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