IN THE CASE OF:	  

		BOARD DATE:	  25 September 2014

		DOCKET NUMBER:  AR20130021176 


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 previous request for award of the Purple Heart.  He also requests, in effect:

	a.  correction of his service medical records to show the "source, fact and treatment" of an injury he received in 1969; and 

	b.  correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the Bronze Star Medal (BSM) (First Oak Leaf Cluster), the Army Commendation Medal (ARCOM), the Air Medal (AM), and "Vietnamese medals" (taken to mean unit awards awarded by the Republic of Vietnam (RVN)).

2.  In his request for reconsideration, he states:

	a.  He takes issue with the Board's conclusion that none of the conditions for award of the Purple Heart have been met.  Specifically, he takes issue with the rationale for this conclusion.  

		(1) The Board stated the source of his injury could not be confirmed.  The fact that he was wounded is not in doubt.  He established this by his own sworn statement and supporting statements of three other witnesses.  Furthermore, as new evidence, a Department of Veterans Affairs (VA) has examined the site of the wound and found scarring consistent with a healed wound of the nature and type described by him (applicant).  New statements from him and others confirm he was injured by hostile small arms fire.
		(2) The Board stated there were no official medical records documenting the injury or treatment.  In his original application, he stated his wound required medical treatment, which was provided by the platoon medic.  Other witnesses confirmed this fact.  In a new statement, the medic states he has no doubt that he treated his (applicant's) wound and states that record keeping was poor in the battalion.  In another new statement, the then-battalion surgeon details the standard treatment for his wound and confirms his (applicant's) description of the treatment he received in his original statement.  

		(3) The Board stated the company commander, platoon leader, and unit medic, who were in the best position to initiate Purple Heart paperwork, did not do so then and did not conclusively confirm his injury or resulting treatment.  This is true, but at the time he was wounded the platoon leader was not with the unit as they were operating in separate squads.  He usually went with one squad, while the platoon leader went with another.  The platoon leader did not know he was wounded.  Furthermore, their platoon was not together with any other platoons of the company.  Thus, neither the platoon leader nor the company commander knew of the incident in which he was wounded.  It follows that neither could have or would have initiated paperwork.  Both confirm these facts in new statements.  The unit medic has explained that a written record was always initiated on evacuated Soldiers, but this was not always done for wounded Soldiers who remained in the field.  Other members of his unit who were treated for wounds in the field have also not received the Purple Heart.  

	b.  The Board denied his application on the grounds that there was no official record of the incident and then chose to interpret every relevant fact in the light most detrimental to him in support of the decision to deny relief.  He contends that the Board found him and those who provided statements to be credible; therefore, the evidence he submitted must be deemed both credible and trustworthy and should constitute a sufficient basis for granting his request.  The fact that the official record does not show the incident in question is evidence of a material error that must be corrected by the Board based on the governing law and regulation.  

	c.  He contends that the Board uses a flawed process in that by presuming regularity requests for relief from errors involving the absence of a record are nearly always denied.  He and his daughter, an attorney who is a professional researcher, have reviewed over 200 Board decisions in which the applicant sought award of the Purple Heart.  In their review, they found that:  the overwhelming majority of these requests are denied; the denial is virtually always based upon the lack of an official record; the Board virtually never corrects and erroneous omission in the official record irrespective of the nature, scope, and 
probative strength of the evidence submitted by the applicant; and the Board cites many reasons for denying these applications, but the real factors are the lack of an official record or omission in the current official record of at least one qualifying element.

	d.  He cites several cases in which the Board has denied award of the Purple Heart based on the absence of an official record supporting the award.  He states his research confirms that the Board consistently fails to follow procedures mandated by regulation.  Under the Board's current practice, no veteran seeking a Purple Heart in circumstances such as his will ever win his case no matter how much evidence he produces because the Board will not consider such evidence.  The Board will only review the existing official record, which by definition is erroneous.  

	e.  He found one exception.  In Army Board for Correction of Military Records (ABCMR) Docket Number AR2003099833, dated 14 October 2004, a World War II veteran stated he was wounded in a tank battle in France.  His eardrums were punctured, he had a concussion, and he bled from the nose.  He submitted his statement and statements of other witnesses.  In this case, there was no official record whatsoever documenting his wound, its source, or its treatment.  The Board confirmed there was no medical evidence showing this applicant was wounded in action and that regulatory evidence for award of the Purple Heart was not present.  The Board found, however, that the statements were credible and granted award of the Purple Heart.  In this case the Board complied with its regulatory mandate and reached a fair decision.  If the Board followed the same procedure in his case, he would win his case.  

	f.  He notes the decision of the U.S. District Court for the District of Columbia Circuit in Wilhelmus v. Geren.  In this case the court stated that when a plaintiff has pointed to a specific prior decision very similar to his own situation, the Board may not simply ignore such precedent for the sake of expediency.  The court further stated that to do so would leave open the possibility that two identical cases would be decided differently and that nothing could be more arbitrary and capricious.  He contends that his case is identical to AR2003099833 and establishes by overwhelming evidence that he should be awarded the Purple Heart.  

	g.  The Board had reversed prior denials in cases where it has apparently been influenced by Congressional pressure.  Examples include the cases of Mr. E_____ L___ (ABCMR Docket Number AR20120013168, dated 14 August 2012) and Mr. J__ S____ (ABCMR Docket Number AR20120013906, dated 28 February 2013).  A U.S. Senator successfully petitioned the Board for Purple Hearts for these individuals.  Both were Army veterans of the Vietnam War who had been denied Purple Hearts because their wounds were not part of the official record.  One had provided four witness statements and the Department of Veterans Affairs had recognized his wound.  The other had provided two sworn statements from other men wounded in the same event and testimony from the platoon medic who had treated him.  Apparently there were no official medical records supporting either claim.  After the Senator's intervention, Purple Hearts were issued to both individuals.  He believes the Board is susceptible to political pressure from influential members of Congress, and this seems to have resulted in preferential rulings in favor of applicants who can muster enough political clout to skew the process in their favor.  The law requires equal treatment of all applications and all applicants, not just those who have politically powerful advocates.  Inequitable treatment results in a process that is biased, arbitrary, and capricious.  

	h.  The Board may correct an error or remove an injustice.  Even if the Board does not correct his records, it should remove the injustice of him not receiving an award he earned.  Denial of award of the Purple Heart to a Vietnam War veteran wounded in action by hostile fire is a special injustice to his generation of warriors, and the Board must remove this injustice not just for him, but for all others in similar circumstances.  He describes the circumstances under which he entered military service, his family's history of service, his service record, and his post-service accomplishments to illustrate how the Board's denial is a special injustice to him.  

3.  He provides statements and exhibits identified in lists.

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 AR20120010189, on 8 January 2013.

2.  The applicant provides new argument and evidence that warrant consideration by the Board.

3.  On 23 July 1968, the applicant was inducted into the Army of the United States.  After completing initial entry training, he was awarded military occupational specialty 11B (Light Weapons Infantryman) and assigned to The Candidate Brigade, U.S. Army Infantry School, Fort Benning, GA, for further training.  After completing this training, he was promoted to staff sergeant/E-6.

4.  His DA Form 20 (Enlisted Qualification Record) shows in:
* item 38 (Record of Assignments) – he was assigned to duty in Vietnam as a squad leader with Company A, 3rd Battalion (Airborne), 503rd Infantry, 173rd Airborne Brigade, from 7 August 1969 to 4 June 1970
* item 38 – he received all "excellent" conduct and efficiency ratings
* item 40 (Wounds) – no entry indicating he was wounded as a result of hostile action
* item 41 (Awards and Decorations) – 

* National Defense Service Medal (NDSM)
* Parachutist Badge
* Vietnam Service Medal (VSM)
* BSM
* RVN Campaign Medal with Device (1960)
* one Overseas Service Bar
* Sharpshooter Marksmanship Qualification Badge with Machine Gun Bar
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14)
 
5.  Headquarters, 173rd Airborne Brigade, issued:

* General Order (GO) Number 227, dated 4 February 1970, awarding him the BSM for meritorious service during the period August 1969 to January 1970
* GO Number 1344, dated 6 June 1970, awarding him the ARCOM for meritorious service during the period August 1969 to June 1970
* GO Number 2478, dated 12 September 1970, awarding him the ARCOM for meritorious achievement during the period 12 March to 21 April 1970

6.  He provides Headquarters, 173rd Airborne Brigade, GO Number 1195, dated 25 May 1970, showing he was awarded the AM for meritorious achievement during the period 12 August 1969 to 1 May 1970.

7.  He provides Headquarters, 173rd Airborne Brigade, GO Number 1251, dated 1 June 1970, which shows the heading "AWARD OF THE BRONZE STAR MEDAL."  However, the GO also states "Awarded:  Army Commendation Medal."  The GO shows the applicant received an award for his meritorious achievement during the period March to April 1970.  He also provides a BSM Citation and Certificate showing he received the BSM for meritorious achievement during the period March to April 1970.  

8.  On 11 June 1970, he underwent a separation medical examination.  A clinical evaluation found no abnormalities on his left hand.  
9.  On 11 June 1970, he was honorably released from active duty after completing 1 year, 10 months, and 19 days of total active service.  His DD Form 214 shows he was awarded or authorized the following:

* NDSM
* Parachutist Badge
* one Overseas Service Bar
* Combat Infantryman Badge
* VSM
* BSM
* RVN Campaign Medal with Device (1960)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14)
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)

10.  On 22 June 1973, Headquarters, U.S. Army, Pacific (USARPAC), issued GO Number 299 amending so much of Headquarters, 173rd Airborne Brigade, GO Number 2478 as pertained to the applicant to read, in effect, ARCOM (2nd Award).

11.  On 23 September 1985, the Military Awards Branch, U.S. Army Personnel Command (now known as the U.S. Army Human Resources Command), responded to an inquiry on the applicant's behalf regarding award of the Purple Heart.  The Military Awards Branch official stated that the applicant's Official Military Personnel File had been thoroughly reviewed, and there was no evidence in his medical records or separation physical that he had received any wounds that were serious enough to require medical treatment that was recorded in official records.  As a result, he was not eligible to receive a belated award of the Purple Heart.  

12.  The available service records are void of documentation showing he was wounded as a result of enemy action.

13.  Review of the Vietnam casualty listing compiled by The Adjutant General's Office, Casualty Division does not show the applicant's name listed as a casualty.

14.  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 any orders for the Purple Heart pertaining to the applicant.

15.  His complete service medical records are not available for review.  

16.  He provides the following notarized statements:

	a.  In a statement dated 20 April 2013, Mr. CRB, a former member of the applicant's platoon, stated he knows the applicant's statements are true and that the applicant was wounded by bullet fragments in his hand.  Mr. CRB does not provide any additional information regarding the circumstances under which the applicant was wounded.

	b.  In a statement dated 26 April 2013, Mr. TEB, a former member of the applicant's platoon, stated that soon after the applicant arrived in August 1969 and became the platoon sergeant, he was wounded by incoming enemy small arms fire.  This was the second time he was under enemy fire, so he remembers it well.  

		(1) The platoon had climbed a small hill and stopped to rest.  The hill was covered by scattered, waist-high boulders.  He and another Soldier were sitting on or near some rocks.  Suddenly they received enemy small arms fire.  Bullets were striking the rocks.  He heard the applicant yelp when he was hit and remembers him vaulting up and over a boulder to gain better cover.  After the enemy contact ended, he recalls seeing that the applicant was wounded and bleeding from the hand.  He distinctly remembers that the applicant was wounded by a bullet that ricocheted off a nearby boulder, shooting bullet fragments and/or rock fragments into his hand.  He also remembers that the wound was not a single large bullet hole, but a number of small holes characteristic of shrapnel wounds.  

		(2) At the time, their only platoon medic was RM.  The wound clearly required medical treatment, and he assumes that RM treated the wound.  If the applicant's medical and discharge records do not reflect the fact of his wound, his treatment by the medic, and his entitlement to award of the Purple Heart, they should be corrected to show this.

	c.  In a statement dated 23 May 2013, Mr. HDB, Jr., describes his employment history, including several years as the Director of the VA Medical and Regional Office Center in Honolulu, HI.  He describes the various benefits that are available to recipients of the Purple Heart, and he states there is significant harm to a veteran if he is entitled to the award but it is not recorded by the Government or its branches of service.  

	d.  In a statement dated 18 July 2013, Mr. JDC, who also provided a statement in support of the previous application, stated he served as a platoon leader, executive officer, and acting company commander in the applicant's company.  The applicant was one of his platoon sergeants.  He states that page 40 of a history of the unit attached to the statement of Mr. EWM consists of the list of Soldiers who qualified for the Purple Heart during the last calendar quarter of 1969.  He recalls that awards of the Purple Heart were not processed at the company level, but were handled by the S-1.  The information on page 40 of the history was made as a matter of course from the medical reports of qualifying injuries suffered by Soldiers in the battalion.  If no record of an injury qualifying for award of the Purple Heart was made, then the list would incorrectly omit that Soldier's name.  If medical or S-1 personnel failed to record the facts and circumstances of the applicant's wounding by hostile fire and treatment by the medic, then the list is incorrect and it should be corrected.  Also attached to Mr. EWM's statement is a newly-created page 40 as it should have appeared in 1969.  The Board should accept that page as the form of the applicant's corrected record.  

	e.  In a statement dated 3 June 2013, Mr. GRC, Sr., states the applicant was his platoon sergeant during most of his tour in Vietnam.  He states that standard practice in their unit was that Soldiers who were not wounded seriously refused evacuation and remained in the field because they were always undermanned.  Thus, there often would be no record made of the incident, injury or treatment, in contrast to the records made if a wounded Soldier was evacuated.  He has personal knowledge of this practice because in 1970 he fought in a night battle after which five members of his squad were wounded and evacuated.  He was also wounded, but he refused evacuation because he did not want to desert his comrades.  Because he was not evacuated, no record was made of his wound or treatment, and he did not receive the Purple Heart.  He believes both the applicant and he are entitled to the Purple Heart and should not be penalized for not having been evacuated, especially since at the time their motives were not to earn a medal, but to carry on despite their wounds for the sake of their duty to their comrades.  

	f.  In a statement dated 1 July 2013, Mr. PDC, who also provided a statement in support of the previous application, stated he served as the battalion surgeon for the 3rd Battalion, 503rd Infantry, from January 1970 to January 1971.  

		(1) As he stated in his original statement, non-incapacitating wounds and injuries were treated in the field by medics assigned to platoons.  Had the wounds or injuries been treated at the battalion aid station, a record would have been made.  To the best of his knowledge and belief, if a wounded Soldier was not evacuated and treated at the battalion aid station, there was no protocol for the medic in the field to record the fact or source of the wounds or injuries or the treatment thereof.  More likely than not, these incidents would be reported from the field via radio through the tactical operations center to the company's executive officer or first sergeant.  Sometimes these incidents were not reported from the field, which appears to have happened in the applicant's case.  

		(2) No matter whether medical treatment occurred in the field or in the battalion aid station, there should have been an entry made in the medical records of the wounded Soldier.  Failure to record such an incident is an error that should be corrected.  As the battalion surgeon, he had the authority to create and correct medical records of personnel assigned to the unit, including the applicant's medical records.  If he had known that the applicant's medical records were erroneous due to the failure to record his treatment for a wound suffered by enemy action, he would have correct the his medical records.

		(3)  He has reviewed the applicant's medical records, and they omit any mention of his wound and the treatment thereof.  He has attached to his statement a copy of an original page of the applicant's current medical record which erroneously does not contain any medical notes regarding his wound or its treatment.  He has also attached a copy of the same page on which he has inscribed appropriate notes of the medical treatment the applicant received.  This is the suggested corrected version that should be adopted by the Board.  

	g.  In a statement dated 6 June 2013, Mr. DRG states the applicant was his platoon sergeant for much of his tour in Vietnam.  He vouches for the applicant's credibility but offers no specific details regarding the incident in which the applicant was wounded.  

	h.  In a statement dated 25 April 2013, Mr. WWJ, who also provided a statement in support of the previous application, stated the applicant was his platoon sergeant for most of his tour in Vietnam.  He states that one of the grounds for the previous denial of the applicant's request was that his application did not specifically state his wound resulted from hostile fire.  He arrived in Vietnam a couple of months before the applicant.  During that time, he experienced combat with the enemy, and he had experienced hostile fire from the enemy.  He knew what hostile fire was.  The applicant was wounded by hostile enemy small arms fire.  

	i.  In a statement dated 11 November 2013, Ms. JLK describes the research she performed, which is described above in the applicant's statement.  She also notes that Title 38, U.S. Code, Section 1154b, requires the VA, in making determinations of service connected disease or injury, to accept satisfactory lay or other evidence and, if that evidence is consistent with the circumstances of service, to resolve every reasonable doubt in favor of the veteran.  She states the Board should adhere to a similar policy when considering belated award of the Purple Heart.   
	j.  In a statement dated 6 May 2013, Mr. EBK, who also provided a statement in support of the previous application, stated the applicant was his platoon sergeant during most of his tour in Vietnam.  He arrived in Vietnam about 3 months before the applicant.  During that time, he experienced combat with the enemy, and he had experienced hostile fire from the enemy.  He knew what hostile fire was.  The applicant was wounded by hostile enemy small arms fire.  

	k.  In a statement dated 23 May 2013, Mr. EWM, who also provided a statement in support of the previous application, stated he served in Vietnam as a platoon leader and the applicant was his platoon sergeant when he was in the field.  

		(1) In its decision, the Board stated he was one of those in the best position to initiate paperwork for the Purple Heart.  At the time the applicant was wounded, he was not his platoon leader.  Thus, he did not witness the event and could not have initiated paperwork or confirmed the injury or treatment.  However, other witnesses have done so.  

		(2) For the last half of his tour in Vietnam, he served as the battalion S-1.  His office was in charge of personnel matters including processing awards and decorations.  To his knowledge, no report of the applicant's injury was made to the S-1.  It was the responsibility of the treating medic to initiate such a report in accordance with the unit's standard operating procedures.  This was not always done, especially when the wounded Soldier was not evacuated.  The irregularity of record keeping in these circumstances rebuts the presumption of regularity that is usually afforded to Government administrative records.  This is a failure of the system, which is not the Soldier's fault.  In war, there should be a presumption of irregularity due to the complicated realities of war fighting and record keeping.  

		(3) Attached to his statement, he provides a copy of page 40 of a history of the unit listing, in part, individuals who were awarded the Purple Heart.  He also provides an amended version of the page listing the applicant's name.  He states the amended version shows the correction that should be made by the Board.  

	l.  In a statement dated 2 July 2013, Mr. REM, who also provided a statement in support of the previous application, stated he served as a combat medic assigned to Headquarters Company, 3rd Battalion, 503rd Infantry.  He was routinely sent to the field with different companies and platoons of the 3rd Battalion, and he was assigned to the applicant's platoon from sometime in June or July 1969 through mid-October 1969.  

		(1) His duties included treatment and evacuation of the injured during times of enemy contact.  During his time in the field, he treated many Soldiers with a variety of combat-related injuries.  His treatment records were routinely sent to the aid station with each medical resupply request as was required of medics.  He did not keep personal records or a diary as he did not want it to fall into the wrong hands.  

		(2) He has attended several platoon reunions in recent years and through discussions was made aware of the different incidents in which he was the treating medic.  Based on these discussions and after reading the statements addressed in the previous decision, he still feels that he was the medic who treated the applicant's hand injury since he was the only medic assigned to the platoon at the time. 

		(3) He asks that the Board consider that he was treated for an injury to his right hand incurred during a rocket attack.  Like the applicant, he does not remember the date it happened.  Upon leaving Vietnam, he was given a Purple Heart, yet his medical records, which he has, do not reflect the treatment he received for the injury.  He attributes this to poor record keeping.  

		(4) Statements establish that the applicant received treatment from medical personnel and there is proof that at the time record keeping was not up to military standards.  The requirements of Army Regulation 600-8-22 (Military Awards) have been met.  The applicant's records should be corrected to show his entitlement to the Purple Heart.  

	m.  In a statement dated 23 May 2013, Mr. LM stated most of his tour in Vietnam overlapped that of the applicant.  During his exit physical examination before leaving Vietnam, no one asked him if he was wounded during his tour.  The examination was brief, cursory, and perfunctory.  It seemed to him that the purpose was to find nothing wrong with him so he could be processed out of the country.  He also states that standard practice in their unit was that Soldiers who were not wounded seriously refused evacuation and remained in the field because they were always undermanned.  Thus, there often would be no record made of the incident, injury, or treatment, in contrast to the records made if a wounded Soldier was evacuated.  He has personal knowledge of this practice because he was wounded in 1970 and refused evacuation.  No record was made of his wound or treatment, and he did not receive a Purple Heart.  Neither he nor the applicant should be penalized for not being evacuated, especially since at the time their motives were not to earn a medal, but to carry on despite their wounds for the sake of their duty to their comrades.

	n.  In a statement dated 15 April 2013, Mr. PP, Jr., who also provided a statement in support of the previous application, stated the applicant was his platoon sergeant for most of his tour in Vietnam.  He arrived in Vietnam 3 to 4 months before the applicant.  During that time, he experienced combat with the enemy, and he had experienced hostile fire from the enemy.  He knew what hostile fire was.  The applicant was wounded by hostile enemy small arms fire.  

	o.  In a statement dated 3 June 2013, Colonel (Retired) DER describes his current employment and his service history.  He states the applicant was his platoon sergeant for most of his tour in Vietnam.  He served under the applicant, and commends his performance and character then and commends him for his character and achievements in his post-service life.  He recalls the applicant's injury and seeing him with his left hand wrapped in first aid dressing.  He recalls remarks that he had been hit, but was lucky it was a near miss.  He continued to serve for several days with the dressing protecting him from further injury through infection.  The first time he recognized that the applicant didn't have the dressing on was during a 2-day resupply in the base camp.  The exact date and place cannot be verified as it was not documented by the medics or administrative support staff in the rear.  It would be a great disservice and an unfortunate injustice to not recognize that he earned the Purple Heart given the testimony that supports it.  

	p.  In a statement dated 23 April 2013, Mr. AS states he served with the applicant.  He states that he respects the applicant for his leadership skills and dedication to his men and that the applicant is entitled to the Purple Heart. 

	q.  In a statement dated 16 May 2013, Mr. PJW, who also provided a statement in support of the previous application, stated he commanded Company A, 3rd Battalion, 503rd Infantry, from January 1970 to July 1971.  The original Board decision stated the company commander, platoon leader, and unit medic were in the best position to initiate paperwork for the Purple Heart and did not do so.  At the time the applicant was wounded, he was not his company commander.  He did not witness the event, could not have initiated paperwork, and received no record of the incident.  The intention of his first statement was to inform the Board of the reality of the battlefield.  

	r.  In a statement dated 22 April 2013, Mr. JLZ stated the applicant was his platoon sergeant during most of his tour in Vietnam.  He stated the applicant was an excellent Soldier and commends him for his integrity and unending devotion to his country and the men who served with him.  

17.  The applicant cites ABCMR Docket Number AR2003099833 as a case that is similar to his own in that there was no medical evidence showing the applicant was wounded in action and evidence required by regulation for award of the Purple Heart was not present.  The ABCMR granted award of the Purple Heart based on the applicant's statement and statements of other witnesses.  A review of the Record of Proceedings for this case shows that the applicant was a World War II veteran whose records were destroyed in the fire at the National Personnel Records Center in 1973.  The applicant claimed to have incurred a concussion and punctured eardrums while serving in France.  Statements provided by individuals who had served with the applicant, including a Soldier who had been in a tank with him at the time of the incident, described the circumstances under which he was wounded and the reasons he was not taken to an aid station.  Along with the statements, the Board was provided a copy of pages from a World War II notebook kept by a noncommissioned officer that showed the applicant's name as wounded in action.  Although the evidence did not meet regulatory requirements for award of the Purple Heart, the statements, notebook, and pages from a unit history were found sufficient to warrant a recommendation for relief.  

18.  He cites ABCMR Docket Numbers AR20120013168 and AR20120013906 as examples of cases in which a U.S. Senator successfully petitioned the Board on behalf of Army veterans of the Vietnam War who had been denied Purple Hearts because their wounds were not part of the official record. 

	a.  In ABCMR Docket Number AR20120013168, the Board considered an application to reconsider a request that had been denied twice.  As new evidence, the applicant provided a notarized affidavit from his commanding officer in Vietnam, his platoon sergeant, and two fellow Soldiers from his unit in Vietnam.  In this case, the record contained some evidence that the applicant had been wounded in the right leg, but there was no official record indicating he had been wounded as a result of enemy action while serving in Vietnam.  The affidavits he provided explained the circumstances under which he was wounded and described the medical care he received, which included removal of shrapnel from his leg.  VA records also showed that the applicant had been given a service-connected disability rating for a shrapnel wound to his right leg shortly after he was released from active duty.  The Board determined the evidence presented was sufficient to warrant amendment of its earlier decisions by awarding the applicant the Purple Heart.  

	b.  In ABCMR Docket Number AR20120013906, the Board considered an application to reconsider a request that had been denied once.  The applicant's records contained no reference to him having been wounded during his service in Vietnam.  In support of his request for reconsideration, he provided a notarized letter from a medic who stated he treated the applicant for wounds resulting from a tripped booby trap.  The medic stated the applicant received a shrapnel wound to his leg and arm and had neck trauma and temporary loss of hearing.  The medic stated he was treated and placed on a 1-week medical profile.  The Board found the evidence did not demonstrate the existence of a probable error or injustice and determined the overall merits of the case were insufficient as a basis to amend its previous decision.  Notwithstanding the Board's determination, the Deputy Assistant Secretary (Army Review Boards) approved full relief and directed that the applicant be awarded the Purple Heart.  The Deputy Assistant Secretary noted that the medic's statement corroborated the statement of another platoon member who had been awarded the Purple Heart for wounds incurred in the same incident.  

19.  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.

20.  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. 

21.  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."

22.  Army Regulation 672-5-1 stated the Army Good Conduct Medal (AGCM) was awarded, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  The enlisted person must have had all “excellent” conduct and efficiency ratings.  There must have been no convictions by a court-martial.  His record is void of documentation indicating he was the subject of any disciplinary action.

23.  Army Regulation 600-8-22 states a bronze service star is worn on the VSM for each credited campaign listed in appendix B.  His service in Vietnam coincided with three campaigns:  Vietnam Summer - Fall 1969 (9 June - 31 October 1969), Vietnam Winter - Spring 1970 (1 November 1969 - 30 April 1970), and Sanctuary Counteroffensive (1 May - 30 June 1970).  

24.  Army Regulation 600-8-22 states only one decoration will be awarded to an individual or unit for the same act, achievement, or period of meritorious service.

25.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam.  The 3rd Battalion (Airborne), 503rd Infantry, was cited for award of the:
* RVN Gallantry Cross with Palm Unit Citation for the period 22 October 1967 to 26 September 1970, by Department of the Army General Order (DAGO) 51, dated 1971
* RVN Civil Actions Honor Medal First Class Unit Citation for the period 15 April 1969 to 16 March 1972, by DAGO 5, dated 1973

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for award of the Purple Heart or for correction of his service medical records to show the "source, fact and treatment" of an injury he received in 1969.

2.  The applicant's credibility has been thoroughly established, and there is no reason to question the supporting statements he provides.  The basic issue in this and in similar cases is whether or not the available evidence convincingly shows that the criteria for award of the Purple Heart were met.  Unfortunately, it does not.

3.  The numerous statements provided in this case establish that he was wounded by hostile fire during his service in Vietnam.  However, the governing Executive Order and the regulation in effect at the time stated a wound qualifying for award of the Purple Heart must have required treatment by a medical officer.  He was treated by a field medic, not a medical officer.  He was not evacuated to receive medical treatment from a medical officer, and there is no evidence that he sought such treatment upon returning from the field.  Taken as a whole, the evidence indicates that the wound was not of such severity that it required treatment by a medical officer.  His good fortune to have been so slightly wounded that he did not require treatment by a medical officer also means that the wound did not meet one of the criteria for award of the Purple Heart.  

4.  The cases the applicant cites as similar to his own show some important differences from his case.  

	a.  The World War II veteran in ABCMR Docket Number AR2003099833 was able to provide documentation created at or near the time he was wounded that corroborated his and others' statements.  The applicant has not provided this type of documentary evidence.

	b.  The Vietnam veteran in ABCMR Docket Number AR20120013168 provided a VA record showing he had received a service-connected disability rating for a shrapnel wound to his right leg shortly after he was released from active duty.  The applicant has not provided this type of documentary evidence.

	c.  The Vietnam veteran in ABCMR Docket Number AR20120013906 provided a statement from a medic that corroborated the statement of another platoon member who had been awarded the Purple Heart for wounds incurred in the same incident.  Although the Board voted to deny relief in that case, the Deputy Assistant Secretary (Army Review Boards) found the evidence sufficient to warrant award of the Purple Heart.  The statements the applicant provided do not offer comparable corroboration.  

5.  He states political influence led to the decisions in ABCMR Docket Numbers AR20120013168 and AR20120013906.  The record shows, however, that in each case the applicant, through a Senator, provided new evidence that had not been considered previously by the Board.  Based on that new evidence, relief was granted.  The fact that the applicants in those cases chose to submit their application with the assistance of a Senator's office had no bearing on decisions made based on the available documentary evidence.  The applicant should note that the Board also denies relief in many cases referred to the Board by members of Congress.  Each application is considered on its merits regardless of how it comes to the Board.  

6.  In the absence of evidence showing the applicant received a wound as a result of hostile action that required treatment by a medical officer, there is an insufficient basis upon which to award him the Purple Heart.  

7.  The evidence does not support his request for correction of his service medical records to show the "source, fact and treatment" of an injury he received in 1969.  Although he clearly believes otherwise, there is no error or injustice in the absence of a record of a slight wound that was treated in the field and apparently did not affect his ability to serve or his post-service life.  It would not be appropriate to make such corrections at this late date.  

8.  He provides GO Number 1251.  The GO is ambiguous with regard to whether it was intended to confer the BSM or ARCOM for meritorious achievement; however, he also provides a BSM Citation and Certificate that show the same period shown in the GO.  It appears the BSM was the intended award, and it would be appropriate to resolve any ambiguity in the applicant's favor by correcting his DD Form 214 to show he was awarded the BSM (2nd Award).  

9.  GO Number 1344, dated 6 June 1970, awarded him the ARCOM for meritorious service during the period August 1969 to June 1970.  It would be appropriate to correct his DD Form 214 to show this award.  

10.  GO Number 2478, dated 12 September 1970, awarded him the ARCOM for meritorious achievement during the period 12 March to 21 April 1970.  This is the same period cited in GO Number 1251.  Accepting that GO Number 1251 was intended to confer the BSM for meritorious achievement, the award of the ARCOM announced in GO Number 2478 constitutes duplicate recognition.  It appears that USARPAC was not aware of GO Number 1251 when it amended GO Number 2478 to show the ARCOM (2nd Award).  As such, it would not be appropriate to correct his DD Form 214 to show an additional award of the ARCOM.  

11.  GO Number 1195 awarded him the AM.  It would be appropriate to correct his DD Form 214 to show this award.

12.  He received all "excellent" conduct and efficiency ratings throughout his service, he was promoted to SSG/E-6, and there is no record of any disciplinary action taken against him.  Based on the overall record of service it appears an administrative error occurred resulting in the applicant not being recommended for or awarded the first award of the AGCM.  Therefore, it would be appropriate to award him the AGCM (1st Award) for the period 23 July 1968 to 11 June 1970 and to correct his DD Form 214 to show this award.

13.  His participation in three campaigns during his Vietnam service entitles him to three bronze service stars for wear on his already-awarded VSM.  His DD Form 214 should be corrected to show these bronze service stars.

14.  He was awarded the Sharpshooter Marksmanship Qualification Badge with Machine Gun Bar.  It would be appropriate to correct his DD Form 214 to show this badge.

15.  He served in the 3rd Battalion, 503rd Infantry, during a period for which the unit was cited for award of the RVN Gallantry Cross with Palm Unit Citation and RVN Civil Actions Honor Medal First Class Unit Citation.  He is entitled to correction of his DD Form 214 to show these unit awards

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ____x___  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence warrants partial relief.

2.  As for the reconsideration issue, 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 AR20120010189, dated 8 January 2013.

3.  As for the new issue, with regard to his requests for correction of his record to show the "source, fact and treatment" of an injury he received in 1969 and to show additional awards, the Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  awarding him the AGCM (1st Award) for the period 23 July 1968 to 11 June 1970; 

	b.  deleting from his DD Form 214 the VSM; and 

	c.  adding to his DD Form 214 the:

* BSM (2nd Award)
* ARCOM
* AM
* AGCM (1st Award)
* VSM with three bronze service stars
* Sharpshooter Marksmanship Qualification Badge with Machine Gun Bar
* RVN Gallantry Cross with Palm Unit Citation
* RVN Civil Actions Honor Medal First Class Unit Citation

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 
denial of so much of the application that pertains to correction of his service 


medical records to show the "source, fact and treatment" of an injury he received in 1969.  



      _______ _   _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)                                         AR20130021176





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ABCMR Record of Proceedings (cont)                                         AR20130021176



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