BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20160002923 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 August 2017 DOCKET NUMBER: AR20160002923 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the Army Board for Correction of Military Record decision in Docket Number AR20140017773, dated 2 June 2015. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding him the Purple Heart for wounds he incurred on 5 February 1970 and adding the Purple Heart to his DD Form 214. ___________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 August 2017 DOCKET NUMBER: AR20160002923 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 earlier request for award of the Purple Heart. 2. The applicant states: a.  He should be awarded the Purple Heart for wounds and injuries sustained in combat operations in the Republic of Vietnam on 5 February 1970. His wounds were identified as being the result of friendly fire, but he believes otherwise. b.  During military operations, specifically during the Vietnam War, the offensive firing of weapons occurred when enemy combatants were known or suspected in the area that was not secured/controlled by friendly forces. Firing mortars to "ensure clearance of enemy personnel" is stating "they" believed enemy personnel were in the area. He does not believe the U.S. Army arbitrarily shoots weapons just to expend ammunition. Ammunition is expended when there is a call or justification for doing so. He was on the ground on patrol in the area where combat operations had been and were being carried out. c.  He believes the firing of the friendly projectile or agent was released with the full intent of inflicting damage on or destruction of enemy troops or equipment. d.  His duty as a combat medic assigned to a squad on patrol in the Republic of Vietnam alludes to the "heat of battle." He questions why medical personnel would need to be assigned if there were no suspected enemy in the area. While on patrol in the Republic of Vietnam, his unit was always patrolling to locate and identify the enemy – and patrolling is an offensive maneuver. His unit was on a combat patrol and they were in the "heat of battle" – not immediately in a firefight, but they were prepared to engage the enemy. e.  He questions the validity and comprehensiveness of the investigation, if any such investigation was truly conducted. He believes the vague wording and the lack of details avoids the true facts and purposes of the actions and events of 5 February 1970. The decisions of that day were not factually represented in the message from the Commanding General, U.S. Army Republic of Vietnam. 3. The applicant provides: * self-authored statement, dated 8 January 2016 * military medical record extracts * 26th Aeromedical Staging Flight (Pacific Air Forces) Special Order T-97, dated 18 February 1970 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Department of Veterans Affairs (VA) Rating Decision, dated 18 November 2011 * VA letter, dated 1 December 2011 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 AR20140017773 on 2 June 2015. 2. The applicant provides new arguments and new medical evidence not previously considered that warrant consideration at this time. 3. On 4 March 1969, the applicant was inducted into the Army of the United States. 4. He served in Vietnam from 6 October 1969 through 23 April 1970. 5. He provided medical record extracts that show: a.  He was hit by fragments from an artillery short round near Landing Zone Hardtimes at approximately 1500 hours on 5 February 1970. He incurred multiple fragment wounds of his left chest, left arm, right thigh, and left groin. He also required a chest tube. He was hospitalized at the 17th Field Hospital, Vietnam. b.  On 7 February 1970, he was medically evacuated to the 249th General Hospital, Camp Drake, Japan, where he underwent surgery. c.  26th Aero Medical Staging Flight Special (Pacific Air Forces) Order T-97, dated 18 February 1970, directed his temporary duty for 90 days for medical treatment at the 249th General Hospital, Camp Drake, Japan, and his return to his unit of assignment upon completion of medical treatment. d.  He was provided physical therapy for his arms and legs, his sutures were removed on 20 February 1970, and he was given a projected discharge for duty date in April 1970. 6. He provided a message from the Commanding General, U.S. Army-Republic of Vietnam, dated 13 April 1970, to a member of Congress, in which the commander stated: a.  The applicant was injured in the course of his duties on 5 February 1970. He was proceeding along a trail with his platoon when friendly mortars were fired into an area to ensure clearance of enemy personnel for their night encampment. b.  The action had been verified by an investigation and since there were no known or suspected enemy in the area, the incident was classified as non-hostile. c.  Personnel wounded as a result of non-hostile action who were not placed on hospital very seriously or seriously injured lists were not reported as casualties in accordance with regulations in effect at the time. Had the applicant been incapable of communicating with his next of kin, he would have been placed on a special category list and reported. d.  The form completed by the applicant indicating that he desired to have his next of kin notified that he was slightly injured to wounded applied to hostile action only. 7. On 3 March 1971, he was honorably released from active duty and transferred to the U.S. Army Control Group (Annual Training). His DD Form 214 shows he completed 2 years of creditable active military service. 8. His name is not shown on the Vietnam casualty roster. 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 Military Awards Branch, failed to reveal any orders for award of the Purple Heart to the applicant. 10. He also provided the following previously submitted documents: a.  A VA Rating Decision, dated 18 November 2011, shows: (1)  He was granted a 20-percent service-connected disability rating for diabetes mellitus type 2 with erectile dysfunction associated with herbicide exposure and a 10-percent service-connected disability rating for peripheral neuropathy of both his left lower extremity and right lower extremity. (2)  He was awarded continued service-connection compensation for residuals of shell fragment wounds for his right and left thighs; left chest, forearm, wrist, and shoulder; multiple damaged muscle groups and thoracotomy scar; hemopneumothorax, left, with shortness of breath; and pericardial adhesions with a retained foreign body. b.  A VA letter, dated 1 December 2011, shows he was advised of an increase in his monthly compensation based on his added service-connected disabilities. 11. On 2 June 2015, the ABCMR denied his request for award of the Purple Heart. REFERENCES: Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained 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. a.  Title 10, U.S. Code, section 1129, states the Secretary of the Army will treat service members of the Armed Forces who are killed or wounded in action by friendly fire in the same manner as service members who are killed or wounded in action as the result of an act of an enemy of the United States. (1)  A service member described in this section is one 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 service member. (2)  In the case of a service member killed or wounded on or after 7 December 1941 and before 30 November 1993, the Secretary of the Army will award the Purple Heart in each case which is known to the Secretary before such date or for which an application is made to the Secretary in such manner as the Secretary requires. b.  Injuries or wounds which clearly do not justify award of the Purple Heart include accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action. DISCUSSION: 1. The applicant contends he meets the criteria for award of the Purple Heart. 2. He was injured in Vietnam on 5 February 1970 by friendly mortars. An investigation revealed his injuries were the result of friendly fire and there were no known or suspected enemies in the area. The incident was classified as non-hostile. 3. The governing regulation states a service member is eligible for award of the Purple Heart based on friendly fire if the service member is killed or wounded while directly engaged in armed conflict other than as a result of an act of an enemy of the United States. The applicant was not directly engaged in armed conflict at the time of his injuries as there were no known or suspected enemies in the area. His injury was the result of non-hostile action and deemed accidental. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002923 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002923 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2