MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 November 2000                  
	DOCKET NUMBER:   AR2000046135

	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. Carl W. S. Chun		Director	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Orville W. Troesch, Jr.		Member	
	Ms. Barbara J. Lutz		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:  Reconsideration of her earlier appeal to correct her deceased husband’s military records by awarding him the Purple Heart. 

APPLICANT STATES:  In effect, that the Board’s decision is illogical.  She contends that the deceased former service member (FSM) should be entitled to the Purple Heart because when he served in Vietnam the entire country was a hostile fire area, and because he received service-connection from the Department of Veteran Affairs (VA) for the residual of shell fragment wounds.  She contends that the “Back trouble-hurt by mortar” entry on the report of his separation physical examination should entitle him to the Purple Heart.  She notes that the Board’s discovery that he was entitled to unit awards that had not been issued shows that errors occurred and that it is reasonable to presume a similar error in reference to the Purple Heart.  She states that it is silly to assume that someone is taking notes during a firefight and that it is possible that a medic rather that a doctor treated the FSM.  She states that she has not received a copy of his medical records and wonders why.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR1999031241) on 1 June 2000.

The applicant’s contentions are new arguments that requires Board consideration.

This Board had the FSM’s records for the original review.  Afterwards, they were returned to the National Personnel Records Center (NPRC), a General Services Administration activity, in St. Louis, Missouri.  The applicant can obtain a copy of the FSM’s records upon request to the NPRC.  A copy of the medical records can probably also be obtained from the VA.

Army Regulation 600-8-22 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 a medical officer, and the medical treatment must have been made a matter of official record.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  Paragraph 2-15 provides the guidance for reconsideration.  Subparagraph 
2-15(a) states that if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not any such matters have been submitted.
Subparagraph 2-15(b) further provides the requirements that apply to requests for reconsideration that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously or within a short time after the Board’s original decision.  If the staff finds such evidence, the case will be resubmitted to the Board.

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 entry “Back trouble-hurt by mortar” does not show that the FSM was wounded while in action against the enemy or as the result of enemy action.  It shows that he reported that he had back trouble, which he attributed to “a mortar.”  Given the phrase, as recorded, it is more plausible that he strained his back while picking up or carrying a mortar than that he was wounded by enemy mortar fragments, which is apparently not what he reported.

2.  The fact that the VA extended service-connection for fragment wounds is apparently within the purview of that agency but that does not overcome the fact that there are specific regulatory requirements for award of the Purple Heart that have not been met.

3.  Unfortunately, there is no available evidence that the FSM received medical treatment for a wound sustained while in action against the enemy or as the result of enemy action.  In the absence of such evidence there is insufficient justification for award of the Purple Heart. 

4.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

__JLP___  ___OWT   ___BJL__  DENY APPLICATION

	Carl W. S. Chun
    Director, Army Board for Correction 
	of Military Records

INDEX

CASE ID	AR2000046135	
SUFFIX		
RECON		
DATE BOARDED	20001109	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	107.00	
2.		
3.		
4.		
5.		
6.