IN THE CASE OF:	  

		BOARD DATE:	  5 May 2015

		DOCKET NUMBER:  AR20150003755 


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.  This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the U.S. District Court for the District of Columbia (hereafter referred to as the District Court).  The court directs the ABCMR to reconsider the applicant's request for correction of his medical records and award of the Purple Heart (PH).

2.  The applicant filed a complaint in the District Court on 13 July 2010, challenging the decision made by the ABCMR to deny him award of the PH.  On 19 July 2012, the District Court issued a Memorandum of Opinion denying the applicant's motion.  The applicant appealed the District Court decision to the Court of Appeals for the District of Columbia Circuit (hereafter referred to as the Court of Appeals).  On 19 December 2014, the Court of Appeals reversed the judgment of the District Court and vacated the Board decision, remanding the case to the ABCMR on 20 February 2015 for further proceedings consistent with the opinion of the Court of Appeals.

3.  The opinion of the Court of Appeals, as filed by the Senior Circuit Judge, is summarized as follows:

	a.  The applicant states that undisputed evidence in the records shows he was injured in an enemy attack on 6 June 1969 in Vietnam and that he was treated for his wounds by a member of the Army medical staff.  On the basis of this evidence, the applicant claims that his medical records should be corrected and he should be awarded the PH.

	b.  The Secretary (of the Army) argues in his brief on appeal that because the applicant never requested that the Board amend his medical records, it is improper for him to raise this issue upon appeal.  The Court of Appeals disagrees, opining that the error and injustice in the applicant's records needing correction, namely the omitted medical documentation of his wounds sustained in hostile action and the medical treatment of those wounds, were clearly before the Board for correction, even if not specifically requested by the applicant.

	c.  Even if specific arguments are not expressly made to an agency, they may still be raised on appeal if the agency reasonably should have understood the full extent of the applicant's argument.  It is sufficient if the issue was necessarily implicated in the agency proceedings.  Additionally, the Secretary's argument was never raised with the District Court, thus is forfeited.

	d.  There is no doubt that the applicant needed a correction to his medical records in order to be eligible for the PH and there is no doubt he knew this when he filed his application with the Board.  The supporting statement that he filed with his application quite clearly indicates that an error in his medical records was preventing him from receiving the PH.  In the materials accompanying his application and his petition for reconsideration, the applicant gave the Board the information it needed in order to correct his medical records, namely two witness statements attesting to the fact that he suffered wounds in hostile action which required medical treatment as well as photographs and official reports from his brigade and platoon detailing the events on the day he was wounded.

	e.  The Board never found that any of the evidence submitted by the applicant lacked credibility.  Nor did the Board find that the applicant failed to prove he was wounded and that he received medical treatment.  The Board's decision denying his application for reconsideration rested solely on two findings, discussed in the Board's 2009 Record of Proceedings:

		(1)  The letters of support submitted with this request for reconsideration clearly state that the applicant was wounded in action.

		(2)  The photographs that reportedly show the applicant's wounds bandaged are insufficient by themselves as a basis for award of the PH.  There is no available medical record to corroborate the photographs.

	f.  The applicant never claimed that the photographs of a bandaged Soldier alone warrant his award of the PH and he did not submit those photographs alone, but in conjunction with other corroborating evidence.

	g.  It makes no sense for the Board to say his application is denied because he has no medical records, when the very error stated in his application to the Board was that his Army records lack the medical records of his injury and treatment on 6 June 1969.

	h.  The Board does not suggest and the Secretary does not contend on appeal that they lack the authority to correct the applicant's medical records.  The expansive statutory definition of "military record" establishes that the Board clearly has the authority to correct his medical records if they contain an error or injustice.

	i.  It is even more noteworthy that the Secretary does not contend that the evidence furnished by the applicant is insufficient to justify a correction of his medical records and subsequently award him the PH.

	j.  The Board's decision lacks reasons that a court can measure against the arbitrary or capricious standard of the Administrative Procedure Act, thus the court owes no deference to the Board's purported expertise on the matter.

	k.  The applicant proffered undisputed, creditable evidence to support his application before the Board and in response, the Board rendered a decision that was unworthy of any deference.

	l.  It is concluded the Board failed to fulfill its statutory mandate to correct an injustice clearly presented in the records before it and the denial of the applicant's request was arbitrary and capricious.

4.  The applicant provided no additional evidence not originally provided at the time of his prior applications to the Board.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous considerations of the applicant's case by the ABCMR in Docket Number AR20090009077 on 6 October 2009 and in Docket Number AR20070006455 on 13 September 2007.

2.  The applicant enlisted in the Regular Army on 18 March 1968.  He completed training as a veterinary specialist and served in Vietnam with multiple units, to include the 49th Infantry Platoon (Scout Dog) from 21 January 1969 through 3 August 1969.

3.  In his original application to the Board, the applicant stated an enemy rocket detonated next to his "hooch" in about August 1969, causing him to be blown from his bunk and temporarily lose consciousness.  He regained consciousness and made it to a bunker before realizing he was wounded.  Medics took him to the camp dispensary where he received medical treatment to remove shrapnel and clean and bandage his wounds.  Promptly after receiving treatment, he immediately left the dispensary as he learned that some of the scout dogs were injured and it was his duty to tend to them.  Thus, the medics never had an opportunity to fill out the appropriate medical documentation pertaining to his injuries and treatment.

4.  A DA Form 1594 (Daily Staff Journal or Duty Officer's Log), dated 6 June 1969, referenced the rocketing of Camp Frenzell-Jones from that day and reported that U.S. injuries were as follows:

* two Soldiers were wounded as a result of hostile action for the 49th Scout Dog Platoon
* neither was wounded seriously
* one Soldier was evacuated to the hospital
* both Soldiers were unnamed in this journal
* two dogs from the platoon were wounded during the same action

5.  U.S. Army Vietnam Form 382 (Monthly Report of Scout Dog Operations), dated 7 July 1969, reported that during the previous month of June 1969, two dog handlers were wounded in action.  Further identifying information regarding the dog handlers was not provided in the report.

6.  The applicant returned to the United States where he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) on 5 January 1970.  The PH is not listed on his DD Form 214 among his authorized awards.

7.  A review of the applicant's entire available Official Military Personnel File (OMPF), containing 167 documents, reveals the only documents of any medical nature among its contents are the following 3 documents:

* Armed Forces Examining and Entrance Station letter, dated 23 February 1968, which predates the hostile action in question and is stamped "medically qualified for Officer Candidate School, Combat Arms"
* DA Form 1811 (Physical and Mental Status on Release from Active Service), dated 5 January 1970, states he is physically qualified for separation or reenlistment without reexamination – there are no further remarks and no reference to the wounds in question
* Veterans Administration Form 07-3101 (Request for Information) dated 26 July 1979, lists his diseases or injuries as scrapes and bruises treated in July 1969, tonsillitis treated in August 1969, and teeth treated in November 1969 – there is no reference to the wounds in question

8.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) is blank and item 41 (Awards and Decorations) does not list the PH.  His name does not appear on the Vietnam Casualty Roster.

9.  The applicant provided two witness statements from individuals who were present at the time of the hostile action.  One of the witnesses was also injured in the same attack.  These statements corroborate the applicant was injured and subsequently medically treated when an enemy rocket hit their joint living quarters in Vietnam on 6 June 1969.

10.  Army Regulation 40-66 (Medical Record Administration and Healthcare Documentation) prescribes policies for preparing and using medical reports and records for Soldiers receiving medical treatment or evaluation in an Army military treatment facility.

	a.  Chapter 3 (Preparation of Medical Records) states that unless authorized by this regulation, only documents prepared by authorized U.S. Army Medical Department (AMEDD) personnel will be filed in Army medical records.  This restriction does not prohibit the use of other documents created by attending physicians and dentists outside AMEDD (Navy, Air Force, civilian, and so forth) or the filing of other documents as summaries or brief extracts.  If such documents are filed, their source and the physician or dentist under whom they were prepared must be identified.

	b.  Medical record entries will be made in all inpatient, outpatient, service treatment, dental, Army Substance Abuse Program, and occupational health records by the healthcare provider who observes, treats, or cares for the patient at the time of observation, treatment or care.  No healthcare practitioner is permitted to complete the documentation for a medical record on a patient unfamiliar to him or her.  In unusual extenuating circumstances (for example, death of a provider), local policy will ensure that all means have been exhausted to complete the record.

11.  Army Regulation 600-8-22 (Military Awards) states the PH is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required medical treatment, and the medical treatment must have been made a matter of official record.  All three of these prerequisites must be met in order for a Soldier to be entitled to award of the PH.

12.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9 of the version in effect at the time, 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 entered in item 40.

DISCUSSION AND CONCLUSIONS:

1.  None of the applicant's available military medical or personnel records reference him being wounded in action on 6 June 1969 and receiving medical treatment for those wounds entitling him to award of the PH.

2.  Unit reports supplied by the applicant corroborate that an enemy-triggered explosion occurred on 6 June 1969 resulting in two unnamed Soldiers from the unit requiring medical treatment due to injury.

3.  The photographs of the applicant while bandaged were presumably taken after receiving treatment for the injuries he sustained from the report-referenced explosion.  While supportive of his claim, such photos, even when accompanied by other evidence, do not supplant the need to provide medical documentation of participation in hostile action resulting in wounds and the treatment thereof.

4.  The two witness statements provided lend additional credence to the applicant's contention he was one of the two unnamed Soldiers listed in the unit reports who were injured in the hostile action and received treatment.  The witness statements were made 40 years after the event, when the properties of time and distance tend to erode the memory, as noted in the applicant's stated recollection that the explosion occurred in August 1969 and not in June 1969.  Despite that fact, the sincerity and veracity with which these statements were made are not called into question and they certainly provide an independent corroboration of the applicant's general assertions.  Nonetheless, they do not constitute what the Board would normally consider documentation of medical treatment made a matter of the official military record.

5.  Notwithstanding the published guidance requiring the medical treatment to have been made a matter of official record, the information provided as supporting evidence, when viewed in its totality, is sufficient to reasonably conclude the applicant was wounded as a result of hostile action and received medical treatment for those wounds on 6 June 1969, which should have been entered into his medical records at the time of the event but was not.

6.  Therefore, as a matter of equity, the applicant's records should be corrected to reflect he was wounded as a result of hostile action and received medical treatment for those wounds.

7.  Unfortunately, the applicant's available OMPF contains very little medical documentation, none of which lends itself to amendment including an annotation of treatment for wounds received in action.  In lieu of correcting his medical records, it would be appropriate to amend item 40 of the applicant's DA Form 20 to reflect he received wounds in action on 6 June 1969 for which he received medical treatment.

8.  Based on the foregoing information, there is sufficient evidence to grant the requested relief and award the applicant the PH.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief and to amend the decisions of the ABCMR set forth in Docket Number AR20090009077 and Docket Number AR20070006455.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* amending item 40 of his DA Form 20 to reflect treatment for wounds received in action in the Republic of Vietnam on 6 June 1969


* awarding him the PH for wounds received in action in the Republic of Vietnam on 6 June 1969
* adding award of the PH 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)                                         AR20150003755



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ABCMR Record of Proceedings (cont)                                         AR20150003755



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