IN THE CASE OF:	  

		BOARD DATE:	  17 May 2012

		DOCKET NUMBER:  AR20120003705 


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.  Through a remand action, dated 17 February 2012, the United States District Court, Northern District of Florida, Pensacola Division, requests the Army Board for Correction of Military Records (ABCMR) consider whether:

	a.  credible evidence from colleagues can be accepted in lieu of placement on a casualty roster list;

	b.  the evidence submitted by the applicant is credible;

	c.  after evaluating all the evidence submitted by the applicant, along with the allegations set forth in his complaint, it is in the interest of justice to award him a Purple Heart (PH).

2.  The applicant filed a complaint with the United States District Court, Northern District of Florida, Pensacola Division on 1 December 2011 in which he requested the Court set aside or vacate two previous decisions of the ABCMR and remand his application and all attached documentation to the ABCMR with instructions to reevaluate his application and issue a decision that corrects his military records by awarding him a PH.  

	a.  In his complaint, the applicant stated the ABCMR denied his application for correction of his records to include the PH despite ample evidence that proves he was injured by an enemy mortar round in battle and that a medic treated his injury, which meets the requirements for issuance of a PH.  
	b.  He stated the ABCMR's decision to deny his application and subsequent appeal was arbitrary, capricious, and unsupported by substantial evidence.  

	c.  He further stated the ABCMR made a technical error when it determined the medic who treated his injury was not assigned to his unit when he was injured.  Additionally, the ABCMR failed to properly evaluate the overwhelming and substantial evidence that proves he was injured by an enemy mortar round and subsequently treated by a medic in Vietnam.  

3.  The applicant provides:

* Records of Proceedings for ABCMR Docket Numbers AR20090004640 and AR20090018905 
* the documents considered in the aforementioned Proceedings, including self-authored statements and eight statements from individuals who served with him

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the two previous considerations of the applicant's case by the ABCMR in Docket Number AR20090004640 on 16 July 2009 and Docket Number AR20090018905 on 25 May 2010.

2.  On 16 January 1967, the applicant enlisted in the Regular Army for a period of 3 years.  After completing initial entry training, he was awarded military occupational specialty 11B (Light Weapons Infantryman) and assigned to Vietnam.

3.  His DA Form 20 (Enlisted Qualification Record) shows in: 

* item 38 (Record of Assignments) he served in Vietnam with Company C, 2d Battalion (Airborne), 327th Infantry Brigade, 101st Airborne Division, from 24 July 1967 through 11 July 1968
* item 40 (Wounds) – no entries
* item 41 (Awards and Decorations) – no entry for the PH

4.  He was honorably released from active duty on 23 December 1969.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), which was administratively reissued on 1 September 2010, shows he was awarded or authorized the:

* National Defense Service Medal
* Vietnam Service Medal with four bronze service stars
* Parachutist Badge
* Combat Infantryman Badge
* Bronze Star Medal with Oak Leaf Cluster and "V" Device
* Army Commendation Medal with "V" Device
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation
* Republic of Vietnam Gallantry Cross with Palm Unit Citation

5.  A review of his official military personnel file (OMPF) failed to reveal documentation showing he was wounded during his service in Vietnam.

6.  His name does not appear on the Vietnam casualty roster.

7.  A review of the Awards and Decorations Computer Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Awards and Decorations Branch of the U.S. Army Human Resources Command, failed to reveal orders awarding the applicant the PH.  

8.  The applicant provides a self-authored statement, dated 26 February 2009, describing events that took place on 5 May 1968.  He states he was transported by helicopter to his company at a firebase following a period of hospitalization for malaria.  As the helicopter came close to his unit he could see Soldiers engaged with enemy forces.  Sometime after he exited the helicopter, a mortar round hit behind him causing "a tree trunk" to strike him on the left shoulder.  After the action subsided a medic treated a small gash on his left shoulder blade.  He was then given orders to take the point and move out.  He states three Soldiers were killed in the action.  

9.  The applicant provides several statements from individuals who state they served with him in Vietnam:

	a.  Mr. M.P. indicated in a notarized statement, dated 23 February 2009, that he was a medic assigned to the applicant's unit.  When fighting subsided on
5 May 1968, the applicant came to the command post and reported he had been hit.  In his opinion as a combat medic, shrapnel from a mortar round had struck his lower left trapezius and bounced off the left scapula leaving a 2 to 3 inch long gash.  Mr. M.P. washed the wound with water and applied antibiotic and bandages.  The applicant's rucksack constantly rubbed the area, and for the first 3 or 4 days, Mr. M.P. had to squeeze pus from the wound, apply an antibiotic, and redress the wound.  After 6 or 7 days, the wound closed.  He continued to monitor and dress the wound for another week.  He made no report of the wound at the time because he was out of report forms.  He did not send the applicant to the rear due to being wounded because the applicant requested to stay with his squad.    

   b.  Mr. M.P. also provided a page from his DA Form 20 showing he was assigned to Company C, 2d Battalion (Airborne), 327th Infantry, with principal duty as an aidman from 24 March to 25 April 1968 and to Headquarters and Headquarters Company (HHC), 2d Battalion, 327th Infantry, from 26 April to     26 November 1968.

   c.  Mr. T.Q. indicated in a statement, dated 24 August 2009, that he was a medic in the applicant's company prior to the period in question.  He recalled 
Mr. M.P. being assigned to this company in February 1968.

	d.  Mr. J.W. provided a notarized statement, dated 28 September 2009, which indicated he and Mr. M.P. were attached to the applicant's unit.  Mr. M.P was a medic during the period in question.  In an 18 July 2010 declaration, Mr. J.W also states that he was the unit's senior medic from March to April 1968.  When he left the field, Mr. M.P. assumed his position as the senior medic for a period of time. 

   e.  Mr. F.M.D. indicated in a statement, dated 22 June 2010, that he was assigned to the applicant's company from June 1967 through December 1968.  He states all medics were assigned to the battalion HHC and then attached to different companies.

   f.  Mr. J.W.M. indicated in statement, dated 9 July 2010, that he served in the applicant's battalion in various positions as an officer, which included command of the applicant's company from October 1967 to February 1968.  He further states, in part:

      (1)  He does not have first-hand knowledge of the exact circumstances surrounding the applicant's wounding.  
      
      (2)  All medics were assigned to a medical platoon in the Battalion HHC and then attached to an infantry company.  Medics typically remained with that company until medically evacuated or rotated to duties in the rear or stateside.  Given the absence of contrary information, it is logical to assume Mr. M.P. was in the field with the applicant's company on the date in question.
      
      (3)  Had Mr. M.P. completed the proper form, signed it, and forwarded it to the appropriate place in the rear, the PH would have been awarded.  There would have been no witnesses required.  The PH would have been awarded based on Mr. M.P.'s signature.  

	g.  Mr. R.W. indicated in a statement, dated 19 July 2010, that he served with the applicant in the same platoon.  He states he was stationed in the rear when the applicant was wounded by mortar fragments on 5 May 1968.  He believes Mr. M.P. was the medic who treated the applicant.  He saw the applicant's scars and discussed the [enemy] contact with many of the men involved.

   h.  Mr. T.P. indicated in a statement, dated 20 July 2010, that he served with the applicant in Vietnam, they were exposed to Agent Orange, and they came under rocket attacks at different fire bases.
   
   i.  Mr. S.M. indicated in a statement, dated 27 July 2010, that he was attached to the applicant's company as the senior medic in late November 1967 and stayed with the unit until March 1968.  He states he treated the applicant for "jungle rot," high fever, and dysentery, all of which were common in the environment they were in.  He does not comment on the specific circumstances of the applicant's wounding, but states wounded Soldiers who could fire their weapons were usually kept in the field.  Once the firefight subsided or ended, the medic would determine if they should be sent out for treatment or remain with the unit and be treated by the medic.

10.  The applicant provides a polygraph report showing an examiner asked him several questions related to events on 5 May 1968.  He was asked if he was wounded by an enemy mortar round on the date in question.  He responded "yes" and the examiner noted no deception was indicated.  

11.  In its previous considerations of the applicant's request, the Board determined that, based on a lack of corroborating documentary evidence, there was no evidentiary basis for awarding the Purple Heart.  

12.  The PH is governed by Executive Order (EO) 11016, which states, in part:  

   a.  The Secretary of a military department shall, in the name of the President of the United States award the PH to any member of an armed force under the jurisdiction of that department who, after 5 April 1917, while serving under competent authority in any capacity with an armed force of that department, has been wounded:  

* in any action against an enemy of the United States
* in any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged
* while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party
* as the result of an act of any such enemy or opposing armed force
* as the result of an act of any hostile foreign force
   
   b.  A wound for which award of the PH is made must have required treatment by a medical officer.
   
   c.  The Secretary of the department concerned may prescribe such regulations as he considers appropriate to carry out this order.  The regulations of the Secretaries of the departments with respect to award of the PH shall, so far as practicable, be uniform, and those of the military departments shall be subject to the approval of the Secretary of Defense.

13.  Army Regulation 672-5-1 (Awards), in effect at the time, reiterated the requirement that a wound for which award of the PH was made must have required treatment by a medical officer, with the added provision that records of medical treatment for wounds or injuries received in action must have been made a matter of official record.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) restated this requirement. 

14.  Department of Defense (DOD) Manual Number 1348.33 (Manual of Military Decorations and Awards), Volume 3, currently in effect, states a wound for which award of the PH is made must have required treatment, not merely examination, by a medical officer.  Additionally, treatment of the wound shall be documented in the Service member’s medical and/or health record.  Award of the PH may be made for wounds treated by a medical professional other than a medical officer provided a medical officer includes a statement in the Service member’s medical record that the extent of the wounds were such that they would have required treatment by a medical officer if one had been available to treat them.

   a.  The manual defines "medical officer" as:  "A physician with officer rank.  An officer of the Medical Corps of the Army, an officer of the Medical Corps of the Navy, or an officer in the Air Force designated as a medical officer in accordance with section 101 [of Title 10, United States Code]."  
   
   b.  The manual defines "medical professional" as:  "A civilian physician or a physician extender.  Physician extenders include nurse practitioners, physician assistants, and other medical professionals qualified to provide independent treatment (e.g., independent duty corpsman and special forces medic).  Basic corpsmen and medics are not physician extenders."

DISCUSSION AND CONCLUSIONS:

1.  The Court has asked the Board to consider whether credible evidence from colleagues can be accepted in lieu of placement on a casualty roster and whether the evidence submitted by the applicant is credible.  

   a.  Placement on a casualty roster does not confer entitlement to the PH.  Generally, casualty rosters, including the Vietnam casualty roster, list names of individuals who were injured by hostile action and those who were otherwise injured.  These rosters normally use codes to identify those injured by hostile action and those injured in incidents not involving hostile action.  
   
   b.  The fact that a name on the Vietnam casualty roster was coded as injured by hostile action is regularly used as evidence that the requirements of EO 11016 and the regulation were met, i.e., that the individual was wounded, that the wound required treatment by a medical officer, and that the treatment was made a matter of official record.  It is also understood that the absence of a name on the roster is not, in itself, evidence that an individual was not wounded and entitled to award of the PH.  
   
   c.  Under wartime conditions, wounds requiring treatment by a medical officer will not always receive such treatment, and, even if a Soldier requiring such treatment receives it, there will be cases where the treatment is not made a matter of official record.  In such cases, other sources, including credible statements from colleagues, may be useful in establishing the circumstances in which a Soldier was wounded.  When used for the purpose of determining entitlement to the Purple Heart, statements should corroborate or explain information in the OMPF or other official records that does not, on its own, adequately establish the circumstances under which a Soldier was wounded or that the wound required treatment by a medical officer.  
   
   d.  In this case, neither the applicant's OMPF nor other official records show he was wounded.  There is no official record of a wound to corroborate.  As a result, there is no way to assess the credibility of these statements with regard to the alleged wound.  
   
   e.  No one claims to have witnessed the applicant receive the alleged wound.  It appears the applicant was the sole source of any knowledge of the specific circumstances under which he incurred the alleged wound.  
   
2.  The Court has asked the Board to consider whether, after evaluating all the evidence submitted by the applicant, along with the allegations set forth in his complaint, it is in the interest of justice to award him the PH.
	a.  The applicant alleges the Board denied his application for correction of his records to include the PH despite ample evidence that proves he was injured by an enemy mortar round in battle and that a medic treated his injury, which meets the requirements for issuance of a PH.  He further alleges the Board's decision to deny his application and subsequent appeal was arbitrary, capricious, and unsupported by substantial evidence.  

	b.  There are three basic criteria for award of the PH:

      (1)  the wound must have been incurred while in action against an enemy or as a result of hostile action; 
   
   (2)  it must have required treatment by a medical officer; and
   
   (3)  medical treatment must have been made a matter of official record.

	c.  There is no official documentation corroborating his statement that, after returning to his unit on 5 May 1968, a mortar round hit behind him causing "a tree trunk" to strike him on the left shoulder.  Further, there is no official documentation corroborating Mr. M.P.'s statement that he remembers treating a 2 to 3 inch long gash that he believed was caused by shrapnel.  

	d.  Maintaining the integrity of the military awards system requires that claims to awards, including the PH, be corroborated by the official record.  Without such a requirement, simply claiming to have earned an award would confer entitlement, and the PH and other military awards would quickly lose all meaning.  

	e.  Accordingly, in the case of the PH, the criteria for the award require that medical treatment received for a wound incurred in action against an enemy be made a matter of official record.  It is understood that locating evidence to establish that the criteria were met may be difficult after several decades have passed; however, regardless of the passage of time, requiring such evidence is neither arbitrary nor capricious.

3.  The decision to award the PH must be based on a determination of whether or not the evidence establishes that the criteria of EO 11016 and regulation were met.  In this case, with regard to the alleged wound, the official record does not corroborate the applicant's claim or the statements provided by individuals claiming to have served with him.  Therefore, it is not in the interest of justice to award him 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 AR20090004640 on 16 July 2009 and Docket Number AR20090018905 on 25 May 2010.




      _______ _  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)                                         AR20120003705



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ABCMR Record of Proceedings (cont)                                         AR20120003705



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