IN THE CASE OF:	  

		BOARD DATE:  13 November 2012

		DOCKET NUMBER:  AR20120007779 


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 request for award of the Purple Heart (PH).  

2.  He states he's resubmitting his request for a PH based on additional information he has provided.  He also states his statement explains in detail the actual incident and possible reasons he was not given a PH.  

3.  He provides a self-authored statement, the previous Army Board for Correction of Military Records (ABCMR) Record of Proceedings, and newspaper articles.  He also resubmitted the Armed Forces of the Republic of Vietnam (RVN) orders awarding him the RVN Gallantry Cross with Silver Star.

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 ABCMR in Docket Number AR20100022255 on 17 March 2011.

2.  The applicant provides new arguments and newspaper articles that will be considered by the Board.

3.  The applicant was inducted into the Army of the United States on 29 September 1965.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 13A (Field Artillery Basic).  He served in the RVN from 15 July 1966 to 4 July 1967.
4.  His DA Form 20 (Enlisted Qualification Record) shows in:

* item 38 (Record of Assignments), he was assigned to Battery A, 3rd Battalion, 82nd Artillery, 196th Infantry Brigade in the RVN 
* item 38, no record of being hospitalized in a patient status at any time
* item 40 (Wounds), no entries (blank)
* item 41 (Awards and Decorations), no award of the PH

5.  His service record does not contain orders which show he was awarded the PH or that he was wounded as a result of hostile action in the RVN.

6.  He was honorably released from active duty on 4 July 1967.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) does not show he was awarded the PH.

7.  A Standard Form 88 (Report of Medical Examination) and a Standard Form 89 (Report of Medical History) completed at the time of his release from active duty do not show he was wounded as a result of enemy action.  His Standard Form 88 indicates he was diagnosed with hearing loss, noise included, and he was given a physical profile of 111211.

8.  His name is not shown on the Vietnam Casualty Roster.

9.  A review of the Awards and Decorations Computer Assisted Retrieval System, 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 PH to him.

10.  He provides a self-authored statement in support of his claim stating:

	a.  he  was a gunner on gun 4, base piece, with Battery A, 3d Battalion, 82nd Artillery at the time of the incident on 5 February 1967;

	b.  a Chinook helicopter moved his battery with gun 1 and gun 2.  While the Chinook was moving gun 2, the gun blew hot ash and ignited a fire around gun 3.  He ran through fire to put out the flames around the gun and A22 bag, but he didn't see an open fox hole which was filled with smoke.  He fell into the burning grass which burned both of his arms; 


	c.  the pilot of the Chinook returned to pick up gun 3 and to medically evacuate (MEDEVAC) him to a forward position, but he refused to go.  The pilot arranged to have a smaller helicopter (Huey) to MEDEVAC him to the forward position.  He was then taken to the base camp for treatment, both of his arms were bandaged from wrist to shoulder, and he was incapacitated for days; 

	d.  he argues he previously provided a photocopy of the exact order that the U.S. Army translated and forwarded to him from the III Corps which indicates the battle in which he was engaged;

	e.  he has provided newspaper articles collected by his wife which indicate battles that the 196th Light Infantry Brigade was involved during his tour of duty; 

	f.  his medical records would have been maintained by the attending medical personnel.  While in Vietnam, he was treated for burns he sustained during Operation Gadsden, was awarded the RVN Gallantry Cross, and was treated for ear infections and nerve damage; 

	g.  he was initially treated for his ear problem in Tay Ninh then he was sent twice to Saigon for treatment and diagnosis by their ear specialist.  He was diagnosed with permanent hearing loss, given a medical profile, removed from the guns, and reassigned to a different job; 

	h.  he gave a possible explanation of why he was not nominated by his own battery commander for award of the PH.  He informed his battery commander that he was out of quadroon and he called his gun out of action.  He was told to give an excuse why this happened because the colonel wanted to make an example out of him by reducing him in rank.  He refused to make up an excuse and was later given an Article 15 and a reduction in rank.  He was on the list to be promoted to sergeant, but he was demoted and the next guy was given his stripes; and

	i.  he has always taken pride in everything he did, was the first to be promoted, and relished the idea of saving American lives.  Over the last 44 years, he has felt the anxiety of these events and now realizes how his emotions are deep seated.

11.  He also provided newspaper articles which indicate:

	a.  article, dated 7 February 1967, reported Operation Gadsden began on the previous Thursday and at least 44 Viet Cong had been killed in the offense;

	b.  article, dated 24 February 1967, stated the U.S. Headquarters reported a single-day record of 575 sorties by American tactical bombers over South Vietnam.  The previous high for such single combat flights was 565 on 5 February (1967); and 
	c.  part of an article, dated 27 February 1967, reported that U.S. Soldiers of the 196th Light Infantry Brigade poured 105-millimeter shells into War Zone C during the biggest offensive of the Vietnamese war.

12.  The Armed Forces of the RVN orders he provides contain the following citation:

"Courageous artillery man, 3d Bn, 82d Arty.  During operation GADSDEN in Vietnam on 5 February 1967, though wounded, Private [applicant] still clung to position to fight to the last minute, contributed greatly to the successes of his unit."

13.  Army Regulation 600-8-22 (Military Awards) states the PH 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 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.

14.  Paragraph 2-8b(2) of Army Regulation 600-8-22 states that for the purpose of considering an award of the PH, a “wound” is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.  The regulation states that 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 sole justification for award.  

DISCUSSION AND CONCLUSIONS:

1.  The Vietnam Casualty Roster is a separate database that lists Soldiers who were wounded in action [hospitalized, seriously wounded, not seriously wounded, or returned to duty] during the Vietnam War era.  It was not affected by the 1973 fire at the National Personnel Records Center.  However, the applicant's name is not listed on this roster.  

2.  Although the RVN Gallantry Cross orders indicate he was wounded, his service record is void of evidence that he was wounded as a result of hostile action in Vietnam.

3.  By regulation, in order to award the PH it is necessary to establish that a Soldier was wounded in action, that the wound required treatment by medical personnel, and the treatment must have been made a matter of official record.  However, his service record is void of medical documentation which indicates he sustained wounds as a result of hostile action or that the wounds required treatment by medical personnel. 

4.  The applicant's self-authored statement was reviewed.  However, he didn't specifically indicate his burns were obtained from a combat wound.  He stated he ran through fire to put out flames around a gun and A22 bag.  He mentioned he didn't see a fox hole, fell in burning grass, and both of his arms were burned.  Regrettably, these statements alone are not sufficient to meet the regulatory burden of proof necessary to support award of the PH in this case.  

5.  In the absence of any other corroborating evidence of record which shows the applicant was wounded or injured as a result of hostile action, 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 AR20100022255, dated 17 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)                                         AR20120007779





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ABCMR Record of Proceedings (cont)                                         AR20120007779



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