PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           30 January 2001                  
	DOCKET NUMBER:   AC2000047431

	I certify that hereinafter is recorded the true and complete record of the proceedings 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:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Thomas E. O’Shaughnessy, Jr.		Member	
	Ms. Brenda F. Hirschi		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests reconsideration of his previous application to correct his military records by awarding him the Purple Heart .  He also requests that he be awarded the Purple Heart for another injury he sustained in Vietnam on 
22 August 1971.

3.  The applicant relates that he was wounded while on patrol.  He does not maintain contact with anyone that he served with in Vietnam because of the nightmares thinking about the war elicits.  He submits a report from a civilian doctor plus a memorandum and line of duty investigation (LODI) report concerning the other incident.

4.  The Memorandum of Consideration (MOC) of the Board’s 17 August 2000 review of his case (AR2000039666) is incorporated herein by reference as if wholly set forth.

5.  The civilian doctor’s statement indicates that the applicant suffers from an ongoing problem associated with scar tissue in his rectum.  The memorandum from the brigade commander to the applicant’s company commander indicated that an accident had reportedly occurred and requested a report.  The LODI report indicates that, while on a patrol on 22 August 1971, the applicant was injured when he fell on a stake that had been created when his platoon had cut a fresh trail on the previous day.  The stake entered his rectum.

6.  The applicant’s submissions are new evidence that requires Board consideration.

7.  The available medical records concerning the fragment wound [the subject of the 17 August 2000 MOC] show that, on 8 April 1971, the applicant was treated for a wound to the right leg that had been sustained on the previous day.  X-ray examination revealed the presence of a very deep retained fragment.  On 9 April 1971 another x-ray confirmed the previous finding and a medical decision was made to leave the fragment in place.  The stitches were removed on 14 April 1971. 

8.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against the enemy or as 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.

9.  The Department of Defense Appropriations Act for fiscal year 1994 included an amendment to the rules governing award of the Purple Heart.  While the original rules established that the Purple Heart would be awarded to individual's killed or wounded as a result of hostile action the amendment enabled the Secretaries of each department to award the Purple Heart to members of the armed forces who were killed or wounded in action by weapon fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States.  This ruling, in effect, granted the service Secretaries the authority to award the Purple Heart to individuals directly engaged in armed conflict who were killed or wounded as a result of "friendly fire." 

CONCLUSIONS:

1.  The original MOC noted that there is no evidence of record to show how the 
7 April 1971 fragment wound was incurred.  However, the fact that the wound, which was severe enough to require repeated x-ray examination and stitches, was incurred on the day before it was treated is an indication that it occurred in the field and not in some rear or base camp area.  This would indicate that it was either the result of enemy action or of friendly munitions directed at the enemy.  Furthermore, the existence of the LODI in the 22 August 1971 incident demonstrates how accidental injuries were handled even when they did occur in the field.  

2.  The totality of the evidence, but especially the delay in initial treatment, the absence of an LODI and the change in the rules concerning the Purple Heart, demonstrate conclusively that the 7 April 1971 wound occurred under qualifying conditions.

3.  On the other hand, the 22 August 1971 incident was clearly considered an accidental injury by competent authority at the time.  Additionally, this Board specifically concludes that, in the absence of evidence of record that the unit was actively engaged with an enemy force, the applicant is considered to have not been “in action against the enemy” simply because he was on a patrol in the field.  Award of the Purple Heart for the 22 August 1971 wound is not appropriate.

4.  In view of the foregoing findings and conclusions, correcting  the applicant’s records as recommended below would correct an error and rectify an injustice.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was awarded the Purple Heart for a wound sustained while in action against the enemy on 7 April 1971.

BOARD VOTE:

__AAO__  __TEO__  _BFH____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_   _Arthur A. Omartian___
		        CHAIRPERSON

INDEX

CASE ID	AR2000047431	
SUFFIX		
RECON		
DATE BOARDED	20010130	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	MODIFY	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.