IN THE CASE OF: BOARD DATE: 21 August 2008 DOCKET NUMBER: AR20080009015 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 reconsideration of his denial for award of the Purple Heart. 2. The applicant states, in effect, that he believes there was a clear and unmistakable error in the first denial of his request for award of the Purple Heart. He contends that his service records were not considered in the previous decision. He also contends that regulations permit award of the Purple Heart when an injury is sustained from "friendly fire" incidents. 3. The applicant provides a copy of his separation physical; a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); and copies of clinical and treatment records for a fragment wound to the left forearm. 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 AR2004103264, on 10 August 2004. That decision denied award of the Purple Heart because there was insufficient evidence of record to show the applicant was wounded or injured as a result of hostile action in Cambodia in June 1970. Although an entry on the applicant's separation physical noted a shrapnel wound to the left forearm, this evidence, in itself, was insufficient as a basis for award of the Purple Heart. 2. On 13 December 2006, the applicant requested reconsideration of his denial for award of the Purple Heart (ABCMR Docket Number AR20060017700). On 30 May 2007, this application was returned to the applicant without action because it was not received within 1 year of the ABCMR's original decision. 3. The applicant served in the Army of the United States from 8 October 1968 through 30 September 1970. He served in the Republic of Vietnam (RVN) from 17 October 1969 through 29 September 1970. He performed duties as an armor reconnaissance specialist, squad leader, and forward observer with Company E, 1st Battalion, 5th Cavalry of the 1st Cavalry Division (Airmobile). He attained the grade of sergeant/E-5. 4. The applicant provided clinical record sheets and treatment records showing that he received a shrapnel wound to the left forearm as a result of friendly fire on 19 June 1970. The circumstances of the incident were unknown and an investigation was pending. The final report of investigation was not available in the official record. 5. Army Regulation 600-8-22 (Military Awards) 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, and the medical treatment must have been made a matter of official record. This regulation also stipulates that Soldiers wounded or killed as a result of "friendly fire" in the "heat of battle" will be awarded the Purple Heart as long as the "friendly" projective or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment. DISCUSSION AND CONCLUSIONS: 1. The applicant has provided sufficient medical evidence to show that he was wounded as a result of a friendly fire incident on 19 June 1970. The available evidence shows that an investigation of the incident was pending; however, the final investigation report was not available for review in the official record. 2. In order to be entitled to award of the Purple Heart as a result of "friendly fire," the applicant must show that the wound he sustained from "friendly fire" was in the "heat of battle" and that the "friendly" projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment. Regrettably, the available evidence is missing this crucial element. In the absence of this evidence, there is an insufficient basis upon which to grant award of the Purple Heart. The applicant may have in his possession additional evidence showing the circumstances under which he was wounded and/or a copy of the report of investigation. Should the applicant gain access to the required evidence showing that the wound he sustained from "friendly fire" was in the "heat of battle" and that the "friendly" projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment, he may resubmit his request at that time. 3. Based on the foregoing, there is insufficient evidence upon which to change the Board's prior decision at this time. 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. 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 AR2004103264, dated 10 August 2004. __________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) AR20080009015 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080009015 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1