IN THE CASE OF: BOARD DATE: 13 May 2008 DOCKET NUMBER: AR20080002197 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. The applicant requests, in effect, reconsideration of his earlier petition to be awarded the Purple Heart (PH). 2. The applicant states, in effect, that he is entitled to the PH and his case should be reconsidered based on the rebuttal statement and packet he now submits. 3. The applicant provides the following documents in support of his reconsideration request: rebuttal letter; Department of Veterans Affairs (VA) letter, dated 18 July 2006; photographs of Vietnam; Army Review Boards Agency letter, dated 17 November 2005; self-authored letter to United States Army Human Resources Command, dated 5 April 2007; self-authored letter to a Congressman, dated 4 May 2007; flight record (DA Form 759), dated 10 January 1970; numerous Vietnam award orders and Air Medal certificates; Headquarters, United States Air Force (USAF) letter, dated 29 April 1948; VA medical examination report, dated 27 March 2004; Report of Medical Examination (SF 88), dated 18 April 1969; Report of Medical History (SF 89), dated 10 April 1970; third-party letter, dated 8 March 2006, with photographs; 361st Station Hospital letter, dated 25 February 1947; self-authored fact sheet; United States Army Physical Disability Agency Combat-Related Special Compensation Division letter, dated 30 November 2006; VA rating decision packet, dated 3 October 2006; separation documents (DD Forms 214), VA letter, dated 26 September 2006; PH information paper excerpt; newspaper article, and biographical sheet with photographs. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070005607, on 11 September 2007. 2. During its original review of the case, the Board determined there were no orders or other documents contained in the applicant's Official Military Personnel File (OMPF) that showed he was ever recommended for or awarded the PH by proper authority. It also found his name was not included on the Department of the Army Vietnam Casualty Roster. It further concluded that although his medical records showed he underwent surgery on some undetermined date, the evidence did not convincingly substantiate that his injuries were received when his aircraft was shot down in the Republic of Vietnam (RVN). As a result, the Board denied award of the PH. 3. The applicant submits a rebuttal statement as new evidence. He also provides a substantial packet containing many documents in support of his reconsideration request. The VA claim and rating decision documents submitted were available to and considered by the Board during its original review of the case. 4. In his rebuttal statement, the applicant states that he is submitting VA records of combat injuries for consideration. He states that many of the medical files have been lost, but the VA located most of his combat medical records, which the VA indicated were in two volumes with each over 4" thick covering World War II, Korean War, Berlin Crisis, and Vietnam. He indicates that while serving in the RVN, during firefights with the enemy, he was shot down four times. He claims that after the firefight on 8 November 1969, at LZ Vivian, his wife, who was living in a trailer behind the American Post Exchange on a Thai Firebase, asked another officer to fly him to the USAF hospital at Phuoc Vinh Air Base where his lung was inflated. He states that all other combat injuries were repaired by USAF hospitals or by the VA between assignments. He states that the Class II medical examination, dated 14 May 1970, in which he stated there was no change in his mental or physical health, is both correct and in error. He states that the same medical report clearly indicated that he was still suffering from pain from the combat injuries received when his helicopter was shot down in the RVN. 5. The 3 October 2006 VA rating decision does not include military medical records in the list of evidence used for the evaluation. An examination completed by a VA doctor in 2006 indicates the medical records showed the applicant was shot down in the RVN. He further states that subsequently, the applicant suffered a lung collapse and underwent surgery. The doctor makes no specific statement and does not refer to a specific military medical record that confirms subsequent surgery was a direct result of a wound or injury the applicant received as a result of enemy action. 6. The supporting packet of documents provided by the applicant, while clarifying his military biography, provides no specific military medical treatment records that confirm he was ever treated for a wound or injury that he received as a direct result of enemy action. 7. The DD Forms 214 issued to the applicant upon his release from active duty on 2 May 1970 and his retirement on 31 December 1977 do not include the PH in the list of authorized awards. The applicant authenticated both of these separation documents on the dates they were issued. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for reconsideration of his earlier appeal to be awarded the PH was carefully considered. However, by regulation, in order to support award of the PH there must be evidence that the wound or injury for which the award is being made was received as a result of enemy action, that it required treatment by military medical personnel, and a record of this medical treatment must have been made a matter of official record. 2. Although the applicant provides VA medical documents that indicate that he underwent surgery as a result of his lung collapsing while serving in the RVN, none of these documents confirm that this condition was a direct result of injuries he received when his aircraft was shot down. Further, given the applicant was hospitalized in a military medical facility in the theater for the surgery in question, it is likely that, had the condition been received as a result of enemy action and qualified for award of the PH, the PH would have been awarded either by the applicant's local commander or the hospital commander, who also would have had the authority to do so. 3. The applicant's OMPF is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty. It is also void of any military medical treatment records that show he was ever treated for a wound or injury he received as a result of enemy action. 4. Further, the applicant's record includes two separation documents he was issued on 2 May 1970, immediately following his completion of his RVN service, and on 31 December 1977, upon his retirement. Neither of these documents included the PH in the awards listed, and the applicant authenticated both documents with his signature on the dates they were issued. In effect, his signature was his verification that the information contained on the DD Forms 214, to include the awards listed, was correct at the time the documents were prepared and issued. There is also no indication that the applicant pursued this issue in the more than 7 years he remained serving after he completed his RVN tour and prior to retirement. 5. Absent any evidence confirming the applicant was wounded in action or awarded the PH by proper authority while serving on active duty, the regulatory burden of proof necessary to support award of the PH has still not been met in this case. As a result, it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to award the PH at this late date. The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation. The applicant and all Americans should be justifiably proud of his service in arms. 6. 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 this requirement or that would support amendment of the original Board decision in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x ____ ___x____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20070005607, dated 11 September 2007. ______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) AR20080002197 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080002197 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1