MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           22 April 1999                   
	DOCKET NUMBER:   AR1998013572

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright 		Chairperson	
	Ms. Elizabeth Buchanon 		Member	
	Mr. Thomas A. Pagan		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Award of the Purple Heart. 

APPLICANT STATES:  In effect, that he had no control over medical records that were or were not maintained by medics in Vietnam.  He contends that he was wounded in a hostile action sometime during the last 10 days of February 1971 while serving as an infantryman, but was denied the Purple Heart because of the absence of medical records.  He goes on to state that his Veterans Administration (VA) evaluation makes a matter of record the shell fragment wound on his left calf.  In support of his application, he submits a letter of explanation wherein he explains that he applied to the Army Board for Correction of Military Records in 1984 for award of the Purple Heart based on his statements and the final diagnosis by the VA that he had a shell fragment wound on his left calf.  Although his request was denied by letter, he was advised that he could reapply to the Board if he obtained certain information, such as a statement from an eyewitness.  He states that he has obtained an eyewitness statement from another soldier in his squad who was seriously wounded on the same day from the same booby trap as his injury was incurred.  He also submits his original request (dated 2 January 1985), an eyewitness statement dated
3 January 1998, and various VA documentation.	     

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was inducted on 28 January 1970.  He successfully completed training and was transferred to Vietnam for duty as a light weapons infantryman.  He served in Vietnam from 25 June 1970 to 2 September 1971, advanced to sergeant and was honorably separated on 3 September 1971.  

The applicant’s DD Form 214 (Report of Transfer or Discharge), which was authenticated in his own hand, does not show the Purple Heart as an authorized award.

The applicant’s personnel records indicate that the Morning Reports of his unit in Vietnam were searched and no entry concerning a wound was found for the applicant.

Evidence of record shows that on 3 September 1971 the applicant underwent a separation physical examination which makes no mention of any wounds sustained as a result of hostile action.  Neither his DD Form 214 nor his DA Form 20 (Enlisted Qualification Record) reflect entitlement to the Purple Heart and item 40 (Wounds) on his DA Form 20 is blank.       

There is no evidence in the applicant’s service personnel record that he was awarded the Purple Heart or was wounded as a result of hostile action.

The applicant provided the Findings and Decision of the Board of Veterans Appeals, dated 1 April 1988.  The Findings of Fact stated the evidence was insufficient to establish that a shell fragment wound of the left leg was present during service and the Conclusions of Law determined that a shell fragment wound to the left leg was not incurred in or aggravated by service.  The Board of Veterans Appeals concluded that entitlement to service connection for residuals of a shell fragment wound of the left leg is not established.
 
A review of the Vietnam Casualty Roster did not reveal the applicant’s name.  However, the name of the eyewitness did appear on the Vietnam Casualty Roster as wounded on 30 January 1971.  

Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained 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, and the medical treatment must have been made a matter of official record.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant’s contention that he and the eyewitness were wounded sometime during the last 10 days of February 1971, is without merit.  The Board noted that the eyewitness stated they were both wounded by shrapnel on the same day and a few days later, recalled seeing the applicant at the 725th Medical Evacuation Hospital where he assumed the applicant was being treated for his wounds.  

2.  The evidence of record shows the eyewitness was wounded by hostile action in Vietnam on 30 January 1971.  

3.  There is no evidence of record available to the Board which shows the applicant was wounded or treated for wounds as a result of hostile action in Vietnam.  The preponderance of evidence shows that the applicant was not wounded by hostile action in Vietnam.  Therefore, he is not entitled to award of the Purple Heart.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

INW____  EB______  TAP_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998013572	
SUFFIX		
RECON		
DATE BOARDED	19990422	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19710903	
DISCHARGE AUTHORITY	AR 635-200 CHAPTER 5	
DISCHARGE REASON	OVERSEAS RETURNEE	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	107	
2.		
3.		
4.		
5.		
6.