MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            6 December 2001
	DOCKET NUMBER:   AR2001059332

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Harry B. Oberg		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:  That his deceased brother, a former service member (FSM) be awarded the Purple Heart. 

APPLICANT STATES:  That his brother was an Army sergeant killed in Vietnam when he stepped on an enemy land mine while taking watch.  However, he was never awarded the Purple Heart. 

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

He enlisted in the Iowa Army National Guard (IARNG) on 25 March 1964 for a period of 6 years.  He remained in the IARNG until 13 March 1967, when he was discharged from the IARNG and was transferred to the United States Army Reserve Control Group.  

On 19 February 1968, he was involuntarily ordered to active duty for a period of 17 months and 18 days.  He initially reported to Fort Leonard Wood, Missouri and was then transferred to Fort Campbell, Kentucky, where he remained until he was transferred to Vietnam on 29 September 1968, for duty as a prime mover driver in an artillery battery.  He was advanced to the pay grade of E-4 on 22 February 1969. 

On 8 May 1969, the FSM was killed as a result of penetrating missile wounds to the head, neck, chest and abdomen.  The initial casualty report indicated that the FSM was hauling laterite outside the perimeter when a land mine detonated.  It also indicated that it was unknown at the time if it was as a result of enemy action and that an investigation was in progress.

A line of duty investigation was conducted and revealed that the FSM, along with the battery executive officer, were inspecting a laterite pit outside of Special Forces Camp Katum, Republic of Vietnam on 8 May 1969 and that the FSM was killed when he picked up a piece of laterite containing an enemy dud round that exploded upon being picked up.

A final casualty report was issued on 14 May 1969, which classified the FSM’s death as non-battle.  The FSM was promoted posthumously to the rank of sergeant (E-5) on 7 May 1969, with no pay entitlements involved and was awarded the Bronze Star Medal for meritorious service during the period of October 1968 to May 1969. 

Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded to eligible soldiers or the primary next of kin, in the case of posthumous awards, for a death sustained as a result of enemy or hostile action.  Each approved award of the Purple Heart must exhibit substantiating evidence to verify that the death was a result of hostile action and that the medical treatment was made a matter of official record.  Normally, posthumous awards for battle casualties will be awarded by the Department of the Army Total Army Personnel 
Command at the time casualty reports are received, which verify such entitlements.  Awards of the Purple Heart that are approved posthumously will be presented at the time any other posthumous awards or promotions are presented to the next of kin.

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.  While the Board is sympathetic to the family for the death of their loved one, an investigation was conducted at the time of the FSM’s death and it was determined by officials on the scene at the time, that his death was non-battle related.

2.  It is reasonable to believe, given the circumstances in this case and the procedures in effect to award the Purple Heart posthumously, that at the time the FSM was awarded the BSM and was promoted posthumously, he would have been awarded the Purple Heart if he were entitled to the award.

3.  Inasmuch as the FSM’s unfortunate and apparently accidental death was determined to be non-battle related, the next of kin is not entitled to be awarded the Purple Heart on behalf of the FSM.

4.  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:

__fe ____  __hbo___  ___tap __  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

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

INDEX

CASE ID	AR2001059332	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/12/06	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  61	107.0015/PH	
2.		
3.		
4.		
5.		
6.