IN THE CASE OF:    

		BOARD DATE:  6 October 2015	  

		DOCKET NUMBER:  AR20150003307 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his earlier request for award of the Purple Heart. 

2.  The applicant states he was wounded in Vietnam in 1969.  He received shrapnel wounds during combat operations in July or August 1969 in Quang Tri Province.  He does not remember the exact date.  He remembers that he was assigned to B Company, 1st Battalion, 61st Infantry Regiment, 5th Infantry Division (Mechanized).  One of the platoon's vehicles ran over a land mine.  Second Lieutenant (2LT) Dietrich, the platoon leader, was severely wounded and four members were killed in action.  He was walking near 2LT Dietrich when the mine went off.  He was knocked to the ground and received multiple shrapnel wounds from the blast.  The company medic removed some of the shrapnel so he could continue to defend the platoon position.  Other members of the platoon who were severely wounded were evacuated.  He was not evacuated at the time due to enemy action.  When they returned to base camp, he was sent to the 3rd Marine Division Hospital in Quang Tri for further treatment.  On 27 March 1970, the Veterans Administration (VA) requested information from his service records.  He is providing a copy of that request.  This request indicates he was treated for the shrapnel wounds noted above.  Since his records were destroyed, he is hoping this Board can find supporting evidence in the records of the 1st Battalion, 61st Infantry and/or the 3rd Marine Division Hospital. 

3.  The applicant provides VA Form 07-3101 (Request for Information) dated 27 March 1970.

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 AR20130016895, dated 10 June 2014. 

2.  The applicant provides a new argument and a VA Form 07-3101.  This is new evidence which was not previously reviewed and warrants consideration by the Board.

3.  The applicant's records show he enlisted in the Regular Army on 21 October 1968 and he held military occupational specialty (MOS) 11B (Light Weapons Infantryman). He served in Vietnam from on or about 20 June 1969 to on or about 22 November 1969.  He was assigned to:

* Company B, 1st Battalion, 61st Infantry Regiment from 29 June to 25 September 1969
* Headquarters and Headquarters Company, 1st Battalion, 61st Infantry from 25 September to 22 November 1969 

4.  On 17 October 1969, his chain of command initiated separation action against him for unfitness.  He had lacked adaptability and threatened to kill himself in Vietnam.  He had undergone a psychiatric evaluation that diagnosed him with chronic depressive reaction.  

5.  On 11 November 1969, the separation authority approved the discharge action and ordered the applicant discharged for unfitness with an under honorable conditions (general) discharge.  

6.  He was discharged from active duty on 25 November 1969.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the National Defense Service Medal and Vietnam Service Medal.

7.  On 29 September 2011, following his petition to this Board (ABCMR Docket Number AR20110005202), he was issued a DD Form 215 (Correction to DD Form 214), that added the:

* Vietnam Service Medal with 2 bronze service stars
* Republic of Vietnam Campaign Medal with 1960 Device
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Combat Infantryman Badge
* Expert Marksmanship Qualification Badge with Rifle Bar
8.  On 10 June 2014, following his petition to this Board (ABCMR Docket Number AR20130016895), the Board upgraded his general discharge to a fully honorable discharge but denied award of the Purple Heart due to lack of substantiating evidence. 

9.  On 28 August 2014, his original DD Form 214 and DD Form 215 were voided. He was reissued a new DD Form 214 that reflected his honorable characterization of service and the awards previously listed on his DD Forms 214/215. 

10.  He provides a VA Form 07-3101 dated 27 March 1970.  This form shows he applied for VA service-connected disability compensation in Boston, MA.  The VA adjudication officer listed the applicant's personnel information as well as the dates of the applicant's alleged diseases or injuries.  One of the entries shows the applicant alleged he sustained fragment shrapnel wounds in August 1969 and he was treated at the 3rd Marine General Hospital in Quang Tri.  

11.  Nothing in several typical sources shows the applicant was injured or wounded as a result of hostile action or that he was awarded the Purple Heart:

* item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not show a combat wound or injury
* his records do not contain general orders authorizing him award of the Purple Heart
* his name is not shown on the Vietnam casualty listing
* review of the Awards and Decorations Computer Assisted Retrieval System maintained by the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders for the Purple Heart pertaining to him
* his medical records are not available for review with this case
* his records do not contain an official Army notification or a Western Union telegram notifying his next of kin of an injury

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, 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 an 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.

13.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  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. The ABCMR will decide cases on the evidence of record.  It is not an investigative body 

DISCUSSION AND CONCLUSIONS:

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

2.  In this case, the applicant's name is not shown on the Vietnam casualty roster, his DA Form 20 does not show he was wounded in action, his medical records are not available for review with this case, and his service record is void of orders that show he was awarded the Purple Heart.  His record is also void of any official Army correspondence or Western Union telegrams and there is no conclusive evidence in his service personnel records that shows he was wounded or injured as a result of hostile action or treated for such wounds.

3.  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.  The ABCMR will decide cases on the evidence of record; it is not an investigative body. 

4.  Notwithstanding his sincerity, in the absence of official documentary evidence such as operation orders, morning reports, after action reports, or official orders 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 insufficient evidence to show he meets the criteria for award of the Purple Heart.

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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20130016895, dated 10 June 2014. 



      _______ _   _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)                                         AR20150003307



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ABCMR Record of Proceedings (cont)                                         AR20150003307



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