IN THE CASE OF:	   

		BOARD DATE:	  7 January 2015

		DOCKET NUMBER:  AR20140006466 


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 to be awarded the Purple Heart.

2.  The applicant states, in effect, that he desires the Board to correct his records to show the source, fact, and treatment of his injury and by awarding him the Purple Heart.  His request for reconsideration is based on new evidence and argument not previously considered.  He has proven the date and cause of his wounding with reasonable specificity ( November 1969 – Punji Stick) and has provided a witness to the fact that he was wounded and treated by a medic.  He has shown that his records are in error by virtue of the fact that they do not contain information related to his being wounded and treated, which is sufficient to prove his case by a preponderance of evidence.  The Board used a flawed process to deny his application because they did not determine the existence of error or injustice when provided with evidence to show that such was the case. 

3.  The applicant provides a 25-page brief explaining his application; second sworn statements from himself, the platoon medic, and the platoon sergeant; a statement from his platoon leader; Army Board for Corrections of Military Records (ABCMR) Record of Proceedings from his first review by the Board; Department of Veterans Affairs (VA) Priority Group Table; a sworn statement from a former member of the applicant’s unit; first sworn statement from his platoon sergeant; several internet news articles; a previous ABCMR Record of Proceedings pertaining to a third party; and an article titled “The Badge of Military Merit” for a total of eight exhibits.

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 AR20120014689, on 9 April 2013.

2. The applicant enlisted in the Regular Army on 10 October 1968 for a period of 3 years under the airborne enlistment option.  He completed his basic training at Fort Bragg, North Carolina, his advanced individual training as a light weapons infantryman, and his airborne training and Noncommissioned Officer (NCO) Candidate training at Fort Benning, Georgia before being transferred to Vietnam on 3 July 1969.  He was assigned to Company A, 3rd Battalion, 503rd Infantry Regiment, 173rd Airborne Brigade.  He was promoted to the rank of sergeant on 25 February 1970.  He departed Vietnam on 2 July 1970 for assignment to Ft Myer, Virginia where he remained until he was honorably released from active duty (REFRAD) on 8 October 1971, due to the expiration of his term of service.  He had served 2 years, 11 months, and 29 days of active service.  His DD Form 214 issued at the time of his REFRAD shows he was awarded the National Defense Service Medal, Parachutist Badge, Vietnam Service Medal, Combat Infantryman Badge, Army Commendation Medal, Republic of Vietnam Campaign Medal, and Air Medal.

3.  A review of all of the available records as well as the Vietnam Casualty Listing fails to show any evidence of the applicant being wounded while in Vietnam or being treated for any wounds.  Additionally, the applicant’s separation physical examination is not present in his official records.

4.  The sworn statements submitted by the unit medic in the applicant’s behalf indicates that he was the only medic in the unit and he concludes that he must have treated the applicant.  He also admits that he did not report such injuries even though he should have.

5.  The sworn statements from the platoon sergeant who is now a retired lawyer and judge indicates that he interviewed the two medics who served his platoon as well as the executive officer and adjutant and discovered that the records keeping in the unit was deficient as it related to Soldiers who were wounded and remained in the field as treatment was not recorded.  He also states that he and four other Soldiers, including the applicant, had similar circumstances and should have received the award of the Purple Heart.

6.  The sworn statements from the platoon leader who is now a trial lawyer serves only to reiterate that reports of injuries were not submitted on Soldiers who were wounded and remained in the field.
7.  It is noted that all of the statements submitted indicate that they were not asked at the time of separation if they had been wounded.

8.  Army Regulation 600-8-22 (Military Awards) states 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.  As with all personal decorations, announcement in orders is required.  

DISCUSSION AND CONCLUSIONS:

1.  While it is regrettable that the applicant’s disagrees with the process and outcome of the Board process, the Board seeks to adjudicate every case on its own merits.  While the applicant’s may not agree with the outcome, the objective is always to provide equity and justice to all applicant’s based on the available evidence.

2.  The applicant’s contentions and supporting documents have again been carefully considered.  While in the applicant’s opinion he has provided sufficient evidence to establish that he was wounded sometime in November 1969 and that he was treated for his wounds, such does not appear to be the case.

3.  While the sincerity of his claim is not in doubt, he has failed to provide sufficient evidence to meet the three regulatory requirements for award of the Purple Heart.

4.  It is also noted that the applicant and the individuals providing supporting statements all indicate that they were never asked if they were wounded and none have provided a copy of their separation physical examinations which usually contain information regarding wounds or injuries that occur during service.

5.  The award of the Purple Heart requires orders to be published and such orders require a specific date that the individual was wounded and qualifies for award of the Purple Heart which is usually established by the record of treatment or reports from the unit medic.  

6.  The applicant now comes to the Board 40+ years after the fact requesting the Board to correct his record by indicating that he was wounded as a result of enemy action in November 1969, that he was treated for his wounds and that he was awarded the Purple Heart, all based on recollections from himself and several members of his unit, none of whom conclusively verify his account of the events.  Therefore, lacking more substantive and conclusive evidence, preferably of an official nature in the form of medical records, there appears to be no basis to grant his request.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ____x ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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 AR20120014689, dated 9 April 2013.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   _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)                                         AR20140006466





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ABCMR Record of Proceedings (cont)                                         AR20140006466



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