BOARD DATE: 8 June 2017 DOCKET NUMBER: AR20150017311 BOARD VOTE: ____x____ ___x_____ ____x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 8 June 2017 DOCKET NUMBER: AR20150017311 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief and to amend the decisions of the Army Board for Correction of Military Records set forth in Docket Numbers AR2002077640, AR2003096030, AR20050009841, AR20080016309, and AR20130012771. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. awarding him the Purple Heart (1st Award) for wounds received in action in the Republic of Vietnam on 16 May 1968, b. awarding him the Purple Heart (2nd Award) for wounds received in action in the Republic of Vietnam on 10 October 1968, and c. amending his DD Form 214 for the period ending 12 November 1969 to show award of the Purple Heart (2nd Award). ______________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. BOARD DATE: 8 June 2017 DOCKET NUMBER: AR20150017311 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 previous Army Board for Correction of Military Records (ABCMR) decisions as promulgated in Docket Numbers AR2002077640, AR2003096030, AR20050009841, AR20080016309, and AR20130012771. Specifically, through a Member of Congress, he requests reversal of the Army's decision to deny him award of the Purple Heart. 2. The applicant states he requests his case for the Purple Heart be reopened and that all the evidence be reviewed again. 3. The applicant provides a letter from his Member of Congress, dated 17 September 2015; a response letter from the Deputy Assistant Secretary of the Army (Review Boards), dated 7 October 2015; and his previously denied ABCMR Records of Proceeding and submitted evidence. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in previous considerations of the applicant's case by the ABCMR in Docket Numbers AR2002077640 on 10 April 2003, AR2003096030 on 8 June 2004, AR20050009841 on 14 December 2005, AR20080016309 on 7 November 2008, and AR20130012771 on 13 August 2013. a. In the original consideration of his case on 10 April 2003, the applicant submitted a personal written statement, two supporting statements from fellow Soldiers, and Department of Veterans Affairs (VA) medical report extracts. (1) He stated that in the summer of 1968 (exact date not specified) his unit was airlifted into a landing zone and immediately began taking enemy fire. As a result of the intense fire fight, Cobra gunships were called in to help cover their positions. As a result of an air strike, he was hit with shrapnel on his lower right leg. He was treated on site, was bandaged, and refused to be medically evacuated (medevac) out because he wanted to help with the fight. At the time, he didn't think he deserved a Purple Heart as he had guilty feelings knowing that his fellow Soldiers were losing limbs and their lives. After 33 years and talking to many of his fellow Soldiers, he feels he did a disservice to himself by not ensuring he received the Purple Heart. He would like to correct that decision. (2) The statements submitted in support of his contention were authored in 2001. One individual said he saw the applicant's bandaged leg and that he was limping after an ambush by enemy forces in which "Cobra gunships had to be called in to help cover our advance." The second individual, who was his squad leader, stated that when he reached the applicant, a medic was already treating him for a leg wound. He also stated that he should have been medevaced back to camp, but he insisted he wanted to stay. He further noted that he saw the applicant limping "later that night" and "either the medic forgot or [the applicant] was too modest to put himself in" for the Purple Heart. The applicant's VA records indicate an examining physician noted a well-healed scar on the applicant's leg, which the applicant had related was the result of a shrapnel wound to his right leg as a result of friendly fire and that he took the shrapnel out himself. The physician indicated that there was no medical attention, hospitalization, or surgery. b. In his June 2004 reconsideration request, he submitted a witness statement from the platoon medic that was not previously considered. The medic states that he remembers treating the applicant for a combat wound and that the applicant chose to remain in the field with his comrades instead of being evacuated to a hospital. In considering that case, the Board noted there were no service medical records that documented the wound; therefore, the Board denied his request. c. In the December 2005 case, the applicant requested reconsideration based on two new additional documents that were not reviewed by the June 2004 Board. However, in accordance with the applicable regulation at the time, his case was returned without action due to the reconsideration request not being received within 1 year. d. In the November 2008 case, the applicant again requested reconsideration of his request for the Purple Heart. His case was returned without action due to the fact that he was not eligible for further consideration by the Board and he was advised he had the option to seek relief in a court of appropriate jurisdiction. e. In the August 2013 case, the applicant again requested, through a Member of Congress and counsel, reconsideration of his request for the Purple Heart. This request was again returned without action due to the fact that he was not eligible for further consideration by the Board and he had the option to seek relief in a court of appropriate jurisdiction. This request contained new documentation not previously reviewed and a new request for the Purple Heart for a different action that occurred on 10 October 1968 as a result of an enemy land mine (this action was delayed due to the applicant not being able to locate an eyewitness). f. In the applicant's latest request, he provided a letter from his Member of Congress and a response letter from the Deputy Assistant Secretary of the Army (Review Boards), neither of which were previously considered by the ABCMR.  These documents, as well as documents identified above, now warrant consideration by this Board. 3. The applicant was inducted into the Army of the United States on 13 November 1967. He completed his initial entry training and was awarded military occupational specialty 11B (Light Weapons Infantryman). 4. Item 31 (Foreign Service) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from on or about 26 April 1968 through on or about 23 April 1969. 5. Item 38 (Record of Assignments) of the applicant's DA Form 20 shows he was assigned to two different units during his service in the Republic of Vietnam: * Company C, 2nd Battalion, 7th Cavalry Regiment, 1st Cavalry Division (Airmobile), from on or about 26 April 1968 through on or about 5 January 1969 * Company D, 58th Infantry Regiment, attached to the 93rd Military Police Battalion, from on or about 6 January 1969 through on or about 23 April 1969 6. Item 40 (Wounds) of the applicant's DA Form 20 is blank, indicating the absence of any documented wounds during his period of military service. His medical records are not available for review; his available personnel records do not contain orders that show he was awarded the Purple Heart. 7. The applicant was honorably released from active duty on 12 November 1969. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), as amended by a DD Form 215 (Correction to DD Form 214), shows he completed 2 years of total active service, including 11 months and 28 days of foreign service in the Republic of Vietnam. Neither his DD Form 214 nor any subsequent DD Form 215 shows he was awarded the Purple Heart. 8. The applicant's name does not appear on the Vietnam casualty roster compiled by The Adjutant General's Office Casualty Division. 9. A review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant. 10. The applicant provided the following documents: a. A notarized statement from the platoon medic, dated 29 July 2003, wherein he states he remembers treating the applicant for a combat wound and that the applicant chose to remain in the field with his comrades instead of being medevaced to a hospital. He further states it was his fault that nothing was turned in on the wound (presumed to mean documenting the wound in the applicant's medical records), as there were more pressing things going on at the time, as a great number of Soldiers were treated on the battlefield and never went to the rear. b. The following documents were submitted as part of the applicant's June 2004 and December 2005 reconsideration requests; however, they were not reviewed by a Board. (1) An eyewitness statement by a member of his squad, dated 2 May 2005, who recalls the company's air assault mission and fire fight. He recalls an airstrike was initiated and, as a result of it being very close, several men were wounded. He witnessed the applicant being hit in his right leg. He also watched the platoon medic clean and bandage his wound. He also noticed the applicant walking with a limp until his wound got better. (2) A statement from Dr. P. A. S____, a Health Science Specialist (Licensed Psychologist) from the VA, New York Harbor Healthcare System, Brooklyn VA Medical Center, dated 1 April 2005, stating he has treated the applicant since January 1996. The applicant reported on several occasions being wounded as a result of an airstrike while serving in Vietnam and that he was treated by an Army medic. He further noted he refused to leave the battlefield and declined to be submitted for a Purple Heart, as other men had more serious injuries. He further stated this incident was not the focus of his treatment but that he has been diagnosed with chronic post-traumatic stress disorder; however, believes the incident to be factual. c. The following documents were submitted as part of the applicant's August 2013 reconsideration request; however, they were not reviewed by a Board. The applicant, through a Member of Congress and counsel, submitted documents in which an additional incident was cited for award of the Purple Heart. He contends he never filed for this incident because it took him 42 years to locate his eyewitness. He stated he and a fellow Soldier – Mr. A____ G____ – were blown out of a dump truck on 10 October 1968 as a result of hitting a land mine. (1) A DA Form 1594 (Daily Staff Journal), dated 16 May 1968, shows an entry in which the applicant's unit (Company C, 2nd Battalion, 7th Cavalry Regiment) was waiting for an airstrike. This was submitted as evidence relative to his previously submitted requests for the Purple Heart. (2) In a notarized statement, dated 10 October 2011, the applicant states on the morning of 10 October 1968 as a member of Company C, 2nd Battalion, 7th Cavalry Regiment, his squad was providing security for engineers on a mine sweeping patrol. After the sweep was complete, members of his squad, including himself, were loaded up on the back of a dump truck for the return trip. On the way back, the truck hit a landmine and he was blown out of the back of the truck. He and others were evacuated to a field hospital and treated for injuries. (3) In a notarized statement, dated 16 April 2010, the applicant's fellow Soldier – Mr. A____ G____ – states an administrative oversight occurred in not awarding the applicant the Purple Heart, which is an injustice that needs correcting. He notes that on 10 October 1968, the applicant, he, and others were providing security for engineers on a mine sweep patrol. Upon completion, they were riding in a dump truck returning to camp, when the truck hit a landmine injuring the driver, the passenger, the applicant, and himself. He further states that he and the applicant were evacuated and treated for their injuries and returned to their unit. He provided his orders and a Purple Heart Certificate for this action. (4) A notarized eyewitness statement from a Mr. J____ G____, a first lieutenant from another platoon at the time, dated 18 June 2010, who stated he witnessed the applicant with wounds from the 10 October 1968 action and was aware of the circumstances of the enemy landmine incident. He stated: On the morning of 10 October 1968, I was exiting the bunkered facility of the 15th Medical Evacuation Hospital, and witnessed the arrival of [applicant] and others wounded, as they passed near me on their way to being admitted for emergency medical treatment for their wounds. It was obvious that [applicant] and the others were wounded by the concussion of the landmine's explosion. (5) A statement from a Dr. R____ C. K____, Neurologist with Total Neuro Care Primary Care, Brooklyn, NY, dated 15 August 2011, who stated he examined the applicant on 15 August 2011 for a neurological follow up. The applicant complained of headaches, dizziness, and lightheadedness and a magnetic resonance imaging (MRI) was performed originally on 5 March 2010 and again on 20 July 2011. The findings determined he suffered a head injury, which was determined to be a traumatic brain injury (TBI). The injury was determined to have occurred on 10 October 1968 as a result of a landmine explosion causing him to be thrown from the truck. The applicant's head-related complaints had been persistent and he had never sustained any head trauma before the incident or after, up to the present time. The doctor opined, based on the examination, his medical history, and imaging studies, that all conformed to a TBI that occurred in 1968 at the time of his war experience and was of a permanent nature. (6) A DA Form 1594 from 2nd Battalion, 7th Cavalry Regiment, dated 10 October 1968, which shows entries that detail the applicant's unit's role in a mine sweeping mission that started at 0655 and was completed at 0810. Another DA Form 1594 from the 3rd Brigade, 1st Cavalry Division (presumed to be higher headquarters), dated 10 October 1968, shows an entry that details an incident wherein a truck used for mine sweeping operations hit a landmine and at least two Soldiers were wounded. d. In conjunction with this review, the applicant's Member of Congress wrote a letter to the Secretary of the Army, dated 17 September 2015, describing the two separate occasions in May 1968 and 10 October 1968 in which the applicant sustained wounds in the Republic of Vietnam, highlighting the applicant's eyewitness statements from fellow Soldiers and advocating for award of the Purple Heart. REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. Department of Defense Appropriations Act for Fiscal Year 2016 removed the previous 1-year limitation for reconsideration from the date of the original request and stated requests shall be reconsidered if supported by materials not previously presented without regard to age. 2. Army Regulation 600-8-22 (Military Awards) provides 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 the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record. Examples of enemy-related injuries which clearly justify the award are: * injury caused by enemy bullet, shrapnel, or other projectile created by enemy action * injury caused by enemy placed mine or trap * injury caused by enemy release chemical, biological, or nuclear agent * injury caused by vehicle or aircraft accident resulting from enemy fire * concussion injuries caused as a result of enemy generated explosions 3. Army Regulation 600-8-22 further provides for award of the Purple Heart to individuals wounded or killed as a result of "friendly fire" in the "heat of battle" as long as the "friendly" projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment. 4. Title 10, U.S. Code, section 1129 (Purple Heart: Members Killed or Wounded in Action by Friendly Fire), states: a. For purposes of the award of the Purple Heart, the Secretary concerned shall treat a member of the Armed Forces described in subsection (b) in the same manner as a member who is killed or wounded in action as the result of an act of an enemy of the United States. b. A member described in this subsection is a member who is 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, unless (in the case of a wound) the wound is the result of willful misconduct of the member. 5. Included as part of the Department of Defense Appropriations Act for Fiscal Year 1994 was an amendment to the rules governing award of the Purple Heart. While the original rules established that the Purple Heart would be awarded to individuals 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 weapons fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States. This ruling 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." DISCUSSION: 1. The applicant contends he was twice wounded in action. 2. In the first instance, he contends he was wounded as a result of "friendly fire." The applicant on several different occasions provided new evidence not previously reviewed by the ABMCR that verifies and corroborates his contention that he sustained injuries as a result of Cobra gunships conducting air-strikes against an enemy force in order to provide support for his unit. As a result of this close strike, the applicant received a shrapnel wound to his right leg. a. A DA Form 1594, dated 16 May 1968, contains an entry that shows the applicant's unit was waiting for an airstrike. b. In a notarized eyewitness statement, a member of the applicant's squad recalled the airstrike and witnessed the applicant being hit in his right leg and watched the platoon medic clean and bandage the wound. He also noticed the applicant walking with a limp until it healed. c. In a notarized eyewitness statement, the platoon medic stated he treated the applicant on the battlefield for a combat wound and the applicant chose to remain in the field with his comrades. He further stated it was his fault that no medical records were documented at the time due to the number of Soldiers needing medical assistance and the pace of the battle. d. Extracts from VA medical records, albeit dated in 1996, confirm a shrapnel-like wound scar on the applicant's right leg, consistent with his account. 3. As a result of an amendment to law and regulatory guidance, Soldiers who are wounded or killed as a result of "friendly fire" in the "heat of battle" are entitled to award of the Purple Heart as long as the friendly projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment. 4. The Board must determine if a preponderance of the evidence shows the applicant met the criteria for the Purple Heart for the wound he incurred as a result of "friendly fire" on 16 May 1968. 5. In the second instance, he contends he was wounded as a result of being blown out of the vehicle he was riding in that hit a landmine that occurred on 10 October 1968. 6. The applicant contends his squad was providing security for engineers on a mine sweeping patrol on 10 October 1968. After the sweep was complete, the truck he was riding in hit a landmine and he was blown out of the back of the truck with another member of his squad. He and others were evacuated to a field hospital and treated for injuries. a. In a notarized eyewitness statement, Mr. A.G. states he was with the applicant in the truck when it hit the landmine and both were evacuated and treated for their injuries on 10 October 1968. He further states he has orders and a certificate awarding him the Purple Heart for this action. He believes it to be an administrative oversight that the applicant was not awarded the Purple Heart for the same action. b. In another eyewitness statement, Mr. J____ G____, a first lieutenant platoon leader at the time, recalls witnessing the applicant and others arriving at the 15th Medical Evacuation Hospital for treatment of their wounds. He states it was obvious the applicant was wounded by the concussion of the landmine explosion and being thrown from the vehicle. c. In a statement, dated 15 August 2011, Dr. R____ C. K____, neurologist, states the applicant complained of headaches, dizziness, and lightheadedness. The findings determined he suffered a head injury and was diagnosed with TBI. His medical opinion based on the findings of an exam, medical history, and imaging studies, conformed to a TBI having occurred in 1968 at the time of his war experience. d. DA Forms 1594 from his unit and higher headquarters, dated 10 October 1968, show entries that his unit was a part of a mine sweeping mission and that a truck with the mine sweeping operations hit a landmine and at least two Soldiers were wounded. 7. The Board must determine if a preponderance of the evidence shows the applicant met the criteria for award of the Purple Heart for a wound he incurred on 10 October 1968. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017311 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017311 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2