IN THE CASE OF:	

		BOARD DATE:	  20 May 2015

		DOCKET NUMBER:  AR20150001556 


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).


3.  Formal Hearing Case Summary.

4.  Live testimony and any evidence introduced during the hearing.  The applicant appeared before the Board and was not represented by counsel.


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 stated in his previous application: 

   a.  He believes the record is unjust because events that occurred during his Army service render him eligible for the Purple Heart; however, his DD Form 214 and service records do not reflect authorization for this award.  He was injured in Vietnam and the injuries were sustained in combat against the enemy.  He still suffers from the injuries and he would like to receive recognition for his injuries.  He was assigned to the 13th Combat Aviation Battalion in Vietnam.  In May 1967, he was ordered to temporary duty with the Military Assistance Command, Vietnam (MACV), and he was assigned to Advisory Team 75, which operated out of My Tho.  He describes his duties with the advisory team, including routinely accompanying Republic of Vietnam soldiers on resupply missions.  An Army of the Republic of Vietnam (ARVN) captain sought to recognize the service he provided to the captain's unit.  The captain drafted a letter recommending him for a commendation.  

	b.  On or about 17 December 1967, he was injured as a result of enemy action.  Numerous mortar rounds dropped within the unit's perimeter–more than the usual harassing fire they received–and he felt a coordinated ground attack might follow.  He left the building in which he had sought cover to deliver additional ammunition to a fortified defensive position in the event of an attack.  As he hurried to his battle position, a second barrage of mortars impacted the base.  He tried to run back to the main base building for cover, and as he neared the building two mortar rounds impacted dangerously close to his position.  He felt the concussion of the explosion lift him from the ground.  He sustained injuries to his left hand, left arm, head, and left eye from secondary shrapnel.  

	c.  He was not immediately hospitalized for his injuries.  He received field dressings, including a gauze eye patch that he wore for 2 days.  He has enclosed photographs that show him with the field dressing on his left arm and swelling above his left eye.  The eye eventually became infected and having spent 
10 months with Advisory Team 75 he was sent back to the 13th Aviation Battalion.  As he awaited orders to return to the continental United States (CONUS) his infection became worse, but surgical correction was deferred until he returned to CONUS.  His recovery was complicated when he contracted hepatitis.  

	d.  As he was preparing for separation, he asked his first sergeant (1SG) about his Purple Heart (and other awards).  The 1SG referred him to an administrative office, and an officer explained that his unit in Vietnam was waiting to receive his records and orders for awards from Advisory Team 75.  The officer assured him that once these records reached his permanent duty station his record would be amended to reflect the additional awards.  Since his separation, he has been unable to successfully address these discrepancies in his record.  

3.  The applicant does not make a statement on his current application.  However, his Member of Congress states:

	a.  The applicant served honorably in Vietnam and lives minutes from his family and him in Levittown, PA.  He has serious concerns regarding the process used by the Board to determine eligibility for the Purple Heart.  He has met personally with the applicant and knows his story well.  He believes the applicant is not only eligible for the Purple Heart but also deserving of it. 

	b.  He reviewed the evidence submitted by the applicant to the Board and he, along with his staff, were shocked to hear the application was denied.  He requested the applicant be granted a formal hearing so he may be given an opportunity, as a hero, to tell his story and refute the arguments the Board used to determine the denial.  
	c.  Upon reviewing the denial with the applicant, multiple items stood out that triggered his concern for the level of competency and amount of research that goes into reviewing these applications.  The item that he finds most frustrating [in the Record of Proceedings] is the fact that the Board did not even take the time to reach out to Mr. De--- Du---.  Mr. Du--- was the Soldier who pulled the applicant to safety while they were under enemy mortar attack in Vietnam, and Mr. Du--- wrote a letter of support on behalf of the applicant.  The Board did not even reach out to Mr. Du--- by phone or email to verify the events of that day.  Instead, the Board's rebuttal only pointed out that the typed letter was not signed and had the audacity to question whether [Applicant] was indeed injured, when Mr. Du---'s statement described [Applicant] facing down, unconscious in the dirt, a few feet from the mortar blast.  This was an insult to [Applicant] and Mr. Du---, who most likely saved his life.  

	d. There are many more points that he [the Member of Congress] believes [Applicant] has earned the right to defend and present for his case.  As a Member of Congress and passionate supporter of the men and women who volunteer to fight for our country, he is certain that [Applicant] is not only deserving of a hearing but also deserving of the Purple Heart.  

4.  The applicant provides the previous Record of Proceedings with allied documents. 

5.  On 7 May 2015, the applicant provided: 

* Email exchange regarding morning reports
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Separation order
* Article from the Army Times

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 AR20140003364 on 23 October 2014.

2.  The applicant's member of Congress provides a new argument which was not previously reviewed by the ABCMR.  Therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant's available records show he enlisted in the Regular Army for 3 years on 2 May 1966.  He appears to have been trained in and held military occupational specialty 76W (Petroleum Storage Specialist). 

4.  His records contain a DA Form 1 (Morning Report), dated 24 February 1967, that shows he was released from assignment to The Student Brigade, U.S. Army Infantry School, Fort Benning, GA, and reassigned to the 1st Aviation Brigade, Vietnam.  

5.  His service record contains very little documentation pertaining to his active duty service.  However, it appears he completed 1 year of foreign service in Vietnam.  His exact dates of service are unknown.  However, based on medical documents and other service records, it appears he served in Vietnam from around March 1967 to around March 1968.  It also appears he was assigned or attached to the 13th Aviation Battalion. 

6.  It also appears that following his Vietnam tour he was assigned to the 627th Supply and Service Battalion, Fort Bragg, NC.  In April 1968, he requested a compassionate reassignment and in May 1968, his request was approved for assignment to Headquarters and Headquarters Company, U.S. Army Garrison, Fort Hamilton, NY.  

7.  On 16 April 1969, by message to the Commander, 13th Aviation Battalion, Vietnam, the Commander, Headquarters and Headquarters Company, U.S. Army Garrison, Fort Hamilton requested orders for award of the Purple Heart and a statement of wounds sustained by the applicant, as well as any award orders pertaining to him.  

8.  He was honorably released from active duty at Fort Hamilton, NY, on 1 May 1969 and he was transferred to the U.S. Army Reserve to complete his service remaining requirements. 

9.  His DD Form 214 shows he completed 3 years of creditable active service and he was awarded or authorized the: 

* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Army Good Conduct Medal
* Vietnam Service Medal with one bronze service star
* Republic of Vietnam Campaign Medal with Device (1960)
* two overseas service bars

10.  There is no documentary evidence that shows the applicant was injured or wounded as a result of hostile action or that he was awarded the Purple Heart.  Nothing in several typical sources shows he was wounded or injured as a result of hostile action.

	a.  His medical records, which would have listed any injuries and treatment, are not available for review with this case.  

	b.  His DA Form 20 (Enlisted Qualification Record) which would have listed any combat wound or injury in item 40 (Wounds) 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 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 procedure for injuries at the time.

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

	e.  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 the applicant.

11.  He previously provided multiple documents as follows: 

	a.  An unsigned letter, dated 9 July 2013, wherein Mr. Du--- states he was attached to Advisory Team 75 in My Tho, Vietnam.  He describes an attack on or about 17 December 1967 during which he found the applicant laying face down a few feet away from a mortar blast.  He dragged the applicant to the aid station.  He does not describe any injuries the applicant may have received.  

	b.  Partially legible service medical records show:

* on 5 February 1968, he was seen by the 13th Aviation Battalion Medical Section in Vietnam for an infection (other than the entry "(L)" (left), the specific area of the infection is illegible)
* on 13 February 1968, he was seen by the same Medical Section for symptoms of possible neuroma (commonly known as a pinched nerve) in his right arm secondary to an injury he had received 3 years earlier
* in March 1968, he was seen at Walson Army Hospital, Fort Dix, NJ, for treatment of a lesion in the supra-orbital region around his left eye
* no entries indicating he was injured as a result of hostile action

	c.  On or about 24 August 2001, the Chief, Awards and Decorations Branch, U.S. Army Human Resources Command, informed a Member of Congress that there was insufficient documentation available to substantiate an award of the Purple Heart for the applicant.

	d.  A letter from his doctor to the Department of Veterans Affairs (VA), received by the VA on 16 August 2006, shows that, over the years the applicant had been a patient, he had complained of "swelling of the eye and ringing in his [ears]."

	e.  A letter to his doctor from a doctor at Bucks County Plastic Surgery Center, dated 6 October 2006, shows the applicant had a history of having had a shrapnel injury in 1968 that required three surgeries and he indicated concern that there was a foreign body retained in the eye.  The letter does not indicate the source of the medical history.

	f.  A civilian medical record, dated 18 October 2006, shows diagnostic imaging found no foreign body, but did find some scarring associated with the subcutaneous tissue of the left supra-orbital scalp.

	g.  A letter from his doctor to the Disabled American Veterans, dated 17 February 2009, shows his doctor stated the applicant has:

* permanent tinnitus and bilateral hearing loss as a direct result of noise damage sustained from rocket and mortar fire
* a permanent ruptured tympanic membrane as a direct result of military service
* an intermittent, irreversible cognitive deficit caused by head trauma sustained in battle

	h.  A self-authored letter to the VA, dated 18 February 2012, shows he stated he sustained a head injury as a result of a mortar blast in December 1967.  

	i.  Letters from friends and family describe him as having chronic swelling and irritation in his left eye and forehead area with associated pain.  In letters, dated 19 February 2012, his wife and son indicate he was injured in a mortar attack during his service in Vietnam.

	j.  A VA Rating Decision, dated 20 November 2013, shows he received service-connected disability ratings for facial nerve palsy (previously evaluated as residuals of left eye socket injury) and status post head injury.  He had previously received ratings for tinnitus and residuals of a head injury.  The Rating Decision does not cite the cause of the disabling conditions.  

	k.  Numerous photographs that appear to have been taken in Vietnam.  Two of the photographs show him with a bandage on his left elbow.  

12.  His records contain: 

	a.  A letter from the National Personnel Records Center (NPRC), dated June 2001, advising the applicant's Member of Congress that their office reviewed the applicant's records but could not verify his entitlement to the Purple Heart.  

	b.  An NA Form 13105 (NPRC Search Request and Reply), dated 19 May 2005, that shows a search for Advisory Groups 1, 2, and 3, MACV, for the period October 1967 to December 1967 yielded no entries for this individual.  A search for the 67th Evacuation Hospital for 1967 did not produce a clinical record for him. 

13.  He provides: 

	a.  Email exchange with various individuals in relation to Morning Reports at the National Personnel Records Center.  

	b.  An Army Times article, dated 16 June 2011, titled "VA Assigns Officer to Verify Claims Involving Secret Missions."  It describes a VA program wherein a VA employee works closely with a command historian to verify files on classified missions.  

14.  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
* 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

15.  On 20 May 2015, a formal hearing was held in the applicant's case.  The applicant attended and one witness testified on his behalf.  

16.  The applicant provided the following testimony:

   a.  He was in a temporary duty (TDY) status for approximately 10 months of his tour in Vietnam serving in support of MACV advisory teams which were, in turn, supporting ARVN units.  Their duty location, the "Seminary," did not have the usual complement of support services due to the relatively small number of U.S. service members assigned there and the transient nature of assignments to that location.  Medical services were provided at a dispensary staffed by medics. 

	b.  On the date he was injured, he was performing his assigned duty during an attack on the Seminary.  In the course of performing that duty, he was knocked unconscious by the explosion of a mortar round.  As a result, he has no recollection of what happened immediately after he was injured.  

	c.  He stated he incurred injuries to his left eye, stating there may have been a fracture in the bone around that eye.  He also stated he incurred injuries to his left hand and arm.  He described these injuries as "superficial" and stated he believed the injuries may have been cause by shrapnel from the explosion.  

	d.  Two or three weeks after he was injured, his TDY assignment ended and he was returned to his unit.  He stated he was returned to his unit for reasons including the extraordinary length of his TDY, a recurring infection in the area around his left eye, and the fact that his leadership had located a replacement for him.  

	e.  He also described the problems he has experienced due to missing or inaccurate records.  He believes the lack of records was caused, in part, by his lengthy TDY.  Had he been with his unit during this period, he believes his injuries would have been properly documented and he would not have had the problems he has had in support his claim, which included a drawn-out effort to obtain benefits from the VA in which he was ultimately successful.  He noted he has had ongoing problems with the area around his left eye that still affect him.  
17.  The applicant's witness, Mr. D----- Du---, provided the following testimony:

   a.  He was assigned to duty at the Seminary in his signal MOS.  He described how he met the applicant a few days prior to the date in question through his (Mr. Du---'s) side business of selling tapes to service members that they could use to record messages to send home.  
   
   b.  On the date the applicant was injured, the Seminary was attacked twice.  After the first wave, he left his defensive position to obtain more ammunition.  During his search for more ammunition, a second wave began.  He found a Soldier lying face down on the ground unconscious.  He picked up the Soldier by the pistol belt and carried him to the dispensary.  On the way, they were hit with debris from explosions.  When they arrived, the dispensary door was locked, but staff inside opened it after he kicked on the door.  
   
   c.  He described the Soldier he had carried being propped up in a chair in the dispensary.  Once his eyes adjusted to the light in the room, he realized he knew the Soldier as the applicant.  He did not recall seeing the applicant's injuries, but he did see blood on his clothing that was not his own.  He stated he was not injured during this incident.  
   
   d.  He provided additional details about the nature of operations at the Seminary and essentially confirmed the applicant's account of the limited support services available at the Seminary.  Shortly after the incident he tried to find the applicant.  He was unable to locate him and later learned the applicant had returned to his unit.

DISCUSSION AND CONCLUSIONS:

1.  The Board agreed that the preponderance of evidence, to include the statements and testimony provided by the applicant and his witness, supports awarding the Purple Heart to the applicant and correcting his DD Form 214 to show the award.

2.  The preponderance of evidence supports the conclusion that he was wounded as a result of hostile action and that his wounds required treatment by medical personnel.  The fact that the treatment he received for those wounds was not made matter of official record is explained by the unique circumstances of the applicant's lengthy TDY assignment, the isolation of his TDY location, and the lack of a proper medical facility.  

3.  In view of the foregoing, the Board unanimously recommended awarding the applicant the Purple Heart for injuries he incurred on 17 December 1967.
BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding him the Purple Heart for injuries he incurred on 17 December 1967 and adding this award to his DD Form 214.



      _______ _   _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)                                         AR20150001556



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ABCMR Record of Proceedings (cont)                                         AR20150001556



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508




ABCMR Record of Proceedings (cont)                                         AR20150001556



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