IN THE CASE OF:  	  

		BOARD DATE:  18 September 2014  	  

		DOCKET NUMBER:  AR20140002152 


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, through his Member of Congress, reconsideration of his earlier request for award of the Purple Heart.

2.  The applicant states he was wounded in Vietnam in April 1967 and he was treated at the 12th Evacuation Hospital.  He has tried to receive this award several times but he was always turned down. 

3.  The applicant provides:

* Congressional correspondence
* Letters to/from the National Personnel Records Center
* Letter from the U.S. Army Human Resources Command (HRC)
* Request pertaining to military records
* Statement from Mr. J-----y C. W---s
* Mr. J-----y C. W---s' certificate for award of the Purple Heart
* Letter from First Sergeant (1SG) E----d C--e (Retired)
* DA Form 1 (Morning Report) 
* Previous Record of Proceedings 

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 AR20060014387, on 3 July 2007. 
2.  The applicant provides a DA Form 1 and two statements from former Soldiers. These documents constitute new evidence and warrant consideration by the Board.

3.  The applicant's records pertaining to his enlistment in the Regular Army (RA) from 2 September 1964 to 1 September 1967 are not available for review with this case.  However, his post-RA records (U.S. Army Reserve (USAR) and Army National Guard (ARNG)) are complete and/or available and helped construct this case. 

4.  The available evidence shows he enlisted in the RA for 3 years on 2 September 1964.  At the time of his separation he held military occupational specialty 11B (Light Weapons Infantryman). 

5.  He served in Vietnam from 15 December 1964 to 11 February 1967.  His unit of assignment cannot be determined.  Neither his contemporaneous DA Form 20 (Enlisted Qualification Record) nor any award orders are available for review with this case, making it impossible to determine his unit of assignment.

6.  He was honorably released from active duty on 1 September 1967 and he was transferred to the USAR Control Group (Reinforcement) to complete his remaining service obligation.  His DD Form 214 shows his last unit of assignment as 5th Battalion, 16th Infantry Regiment, Fort Hood, TX.  It also shows he was awarded or authorized the: 

* Vietnam Service Medal with 2 bronze service stars
* Bronze Star Medal 
* Republic of Vietnam Campaign Medal
* Combat Infantryman Badge
* National Defense Service Medal
* Expert Marksmanship Qualification Badge with Rifle Bar

7.  On 3 July 2007, the Board adjudicated his case.  It denied award of the Purple Heart based on insufficient evidence to show he was wounded as a result of hostile action and that he was treated by medical personnel for wounds sustained in action and that this treatment was made a matter of official record.  However, the Board recommended other awards.  

8.  As a result of the Board action, on 28 February 2008, he was issued a DD Form 215 that listed his Vietnam service and added to his DD Form 214 the:

* Vietnam Service Medal with 4 bronze service stars
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
9.  He enlisted in the USAR on 19 January 1977.  He entered active duty on 1 May 1980 and served a variety of assignments and he attained the rank/grade of sergeant first class (SFC)/E-7.  He was honorably released from active duty on 7 July 1991. 

10.  He also transferred out of the USAR and enlisted in the ARNG on 30 December 1991.  He was ultimately released from the ARNG (with a general discharge) and he was transferred to the Retired Reserve on 30 June 1997. 

11.  On 30 December 2005, HRC published orders placing him on the Retired List in his retired rank/grade of SFC/E-7 effective 14 April 2006, his 60th birthday. 

12.  He provides: 

	a.  A letter, dated 30 July 2012, from 1SG E----d C--e (Retired), addressed to a Member of Congress.  He states this letter is in reference to a Purple Heart that [Applicant] is seeking.  He served with [Applicant] in Vietnam in 1966-1967.  Their company arrived in Vietnam as an infantry company.  In December 1966, the unit was reorganized as a mechanized infantry unit.  During an operation, the track that [Applicant], Lieutenant J---- McK---t and a Soldier by the name of W---s were on was hit with a mine.  He (the author) was not a witness to this, but W---s and M-----t told him that [Applicant], W---s, and McK----t were wounded and sent back to the hospital.  He was serving as platoon sergeant/platoon leader during the operation and he was on a different track when the event happened.  [Applicant] asked him if he could help him as Lieutenant McK---t and W---s had the Purple Heart issued to them at the hospital, but that he did not receive his.  He (the author) called McK----t when [Applicant] contacted him and asked him if [Applicant] was wounded and he stated to him that he was.  He asked him if he would write a letter stating this and he said he would.  However, he never sent the letter.  A group from the Company made a trip to Fort Benning in 2011 and Lieutenant McK---t along with 8 other members including himself from the unit in Vietnam made the trip to visit the Infantry Museum.  During the visit, he (the author) again asked McK----t if [Applicant] was wounded and again he stated that he was and would send a letter the following week stating he was.  He (the author) does not know why he (McK----t) has not sent the letter verifying the event.  He hopes that [Applicant] will get the Purple Heart that he deserves from being wounded which landed him in the hospital along with McK----t and W---s.

	b.  A letter, dated 1 May 2011, from Mr. J-----y C. W---s to the Department of Veterans Affairs together with his own certificate, showing he was awarded the Purple Heart for wounds received in action on 10 April 1967 in Vietnam.  In the letter, he states it was brought to his attention on 15 April 2011, at a reunion of the 4th Battalion, 23rd Infantry, that Lieutenant McK---t (his old track commander), [Applicant] (track sergeant), and himself, were in the Mekong Delta in support of the 4th of the 9th Infantry.  On the third of April 1967 (give or take a day), they encountered a small weapons and grenade attack, rolling over and setting off smaller detonations when suddenly they hit a big one that gave them a huge explosion.  He saw Lieutenant McK---t with blood coming out of his ears and nose, looking stunned.  He also saw [Applicant] and thought for sure his face was blown off.  It was pure terror in a matter of seconds.  He himself had a concussion and a perforated ear drum.  They were medically evacuated to the 12th Medical Evacuation Hospital in Cu Chi.  During the reunion, none of them remembered the other from 44 years earlier.  When they began to share experiences, they realized they were all on Track lI on 3 April 1967.  Lieutenant McK---t and he (the author) received Purple Hearts for their injuries.  The             [Applicant] did not.  This is not right and should be rectified.  This man was a career noncommissioned officer with a Combat Infantryman Badge and a good Soldier.  He deserves his Purple Heart.  He earned it.

	c.  Unclear Morning Report.  It shows in: 

* Item 1 (Ending Date) appears to be 10 April of an unknown year
* Item 2 (Unit Identification Code) not listed
* Item 4 (Parent Unit) is illegible
* Item 8 (Sub-Command), 25th Infantry Division
* Item 10 (Permanent Station and Location) is illegible
* Item 15 (Remarks Section), his name, rank, and service number are listed under Assignment Loss with the entry: 

Assignment Loss, from duty to WIA (Wounded in Action), vicinity of [Grid Coordinates], possible fractured nose, 1715 hours to RFA [Relieved from Assigned] and reassigned to U.S. Army Vietnam (USARV) Patient Casual Company per Regulation 600-40, Headquarters USARV, dated 
17 October 1966, PCS (illegible)(illegible), EDCSA [Effective Date of Change of Strength Accountability] 
8 April 1967, Attached to 12th Evacuation Hospital effective 1715 hours 8 April 1967, Line of Duty: Yes

13.  Nothing in several typical sources show he was wounded or injured as a result of hostile action.

	a.  His medical records, which would have validated the need for treatment and documented any treatment received, are not available for review.

	b.  His DA Form 20, which would have listed any combat injury in item 40, is not available for review with this case.  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.

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

	d.  His name is not shown on the Vietnam casualty listing.  This is a listing of Vietnam era casualties commonly is used to verify entitlement to award of the Purple Heart.

	e.  His USAR and ARNG DA Forms 2-1 (Personnel Qualification Record) do not list the Purple Heart as an authorized award.

	f.  There is no indication in his USAR/ARNG records that he raised the Purple Heart as an issue of contention. 

14.  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:

	a.  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.

	b.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows:  frostbite or trench foot injuries; heat stroke; food poisoning not caused by enemy agents; chemical, biological, or nuclear agents not released by the enemy; battle fatigue; disease not directly caused by enemy agents; accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; self-inflicted wounds, except when in the heat of battle and not involving gross negligence; post-traumatic stress disorders; and/or jump injuries not caused by enemy action.

15.  Army Regulation 15-185 (ABCMR) states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the applicant was participating in direct or indirect combat operations is a necessary prerequisite, but is not the sole justification for the award.

2.  The criteria for an award of 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 treatment by medical personnel, and the medical treatment must have been made a matter of official record.

3.  In this case, the criterion for award of the Purple Heart was not satisfied:

	a.  The morning report shows the applicant was wounded in action.  However, in the absence of his treatment records, it remains unclear if he required treatment and his treatment records are not made a matter of official record.

	b.  The two statements submitted by the two individuals are not corroborated with any evidence of record.  In one statement the author states he did not witness the incident but heard about it.  In the other statement, the author provides a certificate showing he was awarded the Purple Heart but does not explain if they were all evacuated at the same time to the same medical facility or why he received the medal and not the applicant.  It is equally unclear why Lieutenant McK---t remembers the incident but refuses to submit a statement in that regard. 

	c.  His name is not listed on the Vietnam casualty listing.  There is nothing in multiple typical sources that confirm he was wounded as a result of hostile action or that he required treatment by medical personnel.

	d.  Subsequent to the applicant's release from active duty in 1967, he served in the USAR and the ARNG from 1977 to 1997, with service on active duty from May 1980 to July 1991.  Yet, there is no indication he raised the issue of the Purple Heart at any time despite having earned multiple individual and/or unit awards during this period.

4.  Notwithstanding his sincerity, in the absence of additional official documentary evidence to corroborate the events that led to his alleged injury, or additional documentation that conclusively shows he was wounded or injured as a result of hostile action and treated for those wounds, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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 AR20060014387, dated 11 July 2007.



      __________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)                                         AR20140002152



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ABCMR Record of Proceedings (cont)                                         AR20140002152



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