IN THE CASE OF:	  

		BOARD DATE:  18 June 2013

		DOCKET NUMBER:  AR20120021323 


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 he would like the Purple Heart that was not awarded to him for the incident when he lost his hearing temporarily as a result of an injury during a mortar attack outside the village Vinh Kim in Vietnam on 23 February 1969. 

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) - previously submitted/considered
* Statement from Mr. JMH, a former unit member - previously submitted/considered
* Statement from Mr. NCE, a former unit member - previously submitted/considered
* Email from a Verizon email user referred to as former unit medic - previously submitted/considered
* Additional DA Form 1594 (Daily Staff Journal) pages – not previously considered

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 AR20120007048, on 9 October 2012.

2.  The applicant submitted additional Daily Staff Journal pages as new evidence.
He now makes his request through his Member of Congress.  

3.  The applicant was inducted into the Army of the United States on 16 May 1968 and he held military occupational specialty 11B (Light Weapons Infantryman). 

4.  He served in Vietnam from on or about 10 November 1968 to 20 May 1969.  He was assigned to Company D, 3rd Battalion 39th Infantry, 9th Infantry Division. 

5.  He was honorably released from active duty on 22 May 1969.  His DD Form 214 lists multiple individual or service awards but not the Purple Heart.

6.  There is no evidence of record that shows he was injured or wounded as a result of hostile action or that he was awarded the Purple Heart.  Nothing in several typical sources show he was wounded/injured as a result of hostile action:

	a.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not show a combat wound or injury.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9, stated a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization would be entered in item 40 of the DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in item 40.

	b.  A review of the Awards and Decorations Computer Assisted Retrieval System maintained by the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders for the Purple Heart pertaining to him.

	c.  His name is not shown on the Vietnam casualty listing.  This is a Microfiche Listing of Vietnam Era Casualties that is used to verify entitlement to the Purple Heart. 

	d.  His records do not contain an official Army message or a Western Union telegram notifying his next of kin of an injury or wound.  This was the proper notification of injuries at the time. 

	e.  His medical records contain a Standard Form 88 (Report of Medical History) that shows he underwent a separation physical examination on 22 May 1969, which makes no mention of any injuries or wounds sustained as a result of hostile action in Vietnam.  This form shows he received a permanent "3" profile for hearing and stated he had "Mixed hearing loss" and "Patient exposed to explosions in Vietnam."  He did not mention a combat injury or treatment for such injury.

7.  The applicant provides:

	a.  An undated statement from the former unit commander who states his unit came under a mortar attack at a fire base just outside of Vinh Kim in Vietnam on 23 February 1969.  The applicant was impacted by the attack as he was thrown through the air by the explosion of one of the mortar rounds.  He luckily received no discernible wounds but he suffered an acute total loss of hearing apparently due to a concussion.  He was evacuated to the 29th Evacuation Hospital the next day and although his hearing improved and he was returned to duty he needed subsequent treatment on several occasions.

	b.  An email, dated 23 January 2012, from a Verizon email user who states he was the unit medic at the time in question and that he treated the applicant for a small concussion at Vinh Kim after a mortar round knocked him off his feet in February 1969.

	c.  A statement, dated 12 January 2012, from a radio telephone operator who served in the same unit at the time.  He states he was on watch the night of 23 February 1969 when the compound in Vinh Kim was hit by mortar and small arms fire.  The applicant was sent back to the rear the next day for an evaluation due to ear pain. 

	d.  A DA Form 1594, dated 23-24 February 1969, pertaining to the 3rd Battalion, 39th Infantry.  This form shows Vinh Kim received incoming sniper fire and an unknown number of mortar rounds at 0158.    

8.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained while in action against and 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The criteria for the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.

2.  The applicant's service record is void of any evidence that shows he was wounded or injured as a result of combat.  His name is not listed on the Vietnam casualty listing.  His available service medical records do not reflect a combat injury or treatment.  

3.  He provides multiple statements from various unit members at the time and an organizational journal for 23 February 1968.  Although the authors seem to be sincere in their recollection of events at the time, none explains why such an injury was never documented, at least on a casualty feeder report.  After all, the applicant underwent a separation physical in May 1969, just 3 months after his alleged injury.  It is unclear why his "combat injury" was not mentioned by him at the time.  

4.  The applicant's service in Vietnam is not in question.  However, he failed to satisfy the requirements of the Purple Heart.  Even if the witness statements were corroborated, this still leaves the three questions unanswered.  Did the applicant sustain a combat injury? Did the alleged injury require treatment and if so was the treatment made a matter of official record? Until these questions are answered with the appropriate documentary evidence, the applicant has not met the burden of proof.

5.  Therefore, in the absence of additional documentation that conclusively shows he was wounded or injured as a result of enemy action and treated for those wounds, there is an insufficient evidentiary basis for awarding him 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 AR20120007048, dated 9 October 2012.



      _______ _  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)                                         AR20120021323



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ABCMR Record of Proceedings (cont)                                         AR20120021323



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