MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           20 May 2003                   
	DOCKET NUMBER:   AR2002077883

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Melvin H. Meyer		Chairperson	
	Ms. Deborah S. Jacobs		Member	
	Mr. Jose A. Martinez		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 he be awarded the Purple Heart (PH).  

APPLICANT STATES:  A bunker got hit by an enemy mortar shell while he was carrying a crate of ammunition, which sent him flying.  The impact of his landing injured his back.

In support of his request, the applicant submits a statement from a lieutenant in which it is said that because of the high number of wounded and killed, the uninjured soldiers had to perform superhuman feats in moving crates of ammunition weighing 100 to 200 pounds each, and moving heavy timbers and sand bags in an effort to extract wounded and dead soldiers.  The lieutenant concludes “There is no doubt in my mind that the work [the applicant] had to perform that night did injure his back.”

The applicant submits a second statement in which it is said that the writer witnessed the applicant injure his back while carrying ammunition while their unit was battling North Vietnamese troops.

The applicant submits a third statement in which it is said that the writer witnessed the applicant blown several yards while carrying an ammunition crate when a bunker was hit by a mortar round.  The writer continues that when the applicant got up, he was stunned, his arms were bleeding, and his flak jacket had shrapnel imbedded in it.  The writer continues that the applicant reported suffering from back pain and headaches throughout the rest of his tour of duty in Vietnam.

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

He enlisted in the Regular Army for 3 years on 6 November 1969.  He was awarded the military occupational specialty of infantryman, was assigned to Germany, and was promoted to pay grade E-4.

On 30 November 1970, the applicant reenlisted for assignment to Vietnam.

He served as an infantryman assigned to an infantry unit in Vietnam from 13 February 1971 through 21 January 1972.  He was promoted to pay grade E-5.

He was issued a General Discharge Certificate for Unsuitability on 16 January 1973.  At that time, he was in pay grade E-3.  He had a total of 3 years and 19 days of creditable service, and was charged with lost time for 16 and 

17 January 1971; 24 January to 1 February 1971; 27 January to 21 February 1972; 13 to 23 March 1972; 1 to 10 June 1972; 7 to 10 August 1972; 5 to 12 September 1972; 26 September to 4 October 1972; and 1 to 14 November 1972.  He was also charged with 90 days of excess leave (creditable for all purposes except pay).

The applicant’s Enlisted Qualification Record, Item 40, Wounds, does not have any entries.

Army Regulation 600-8-22 provides that the PH is awarded for wounds sustained 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 by a medical officer, and the medical treatment must have been made a matter of official record.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant does not state that he received medical treatment for his injured back, and there is no evidence in his military record that he received any treatment for an injured back.  As such, the applicant does not meet two of the three criteria of AR 600-8-22 for award of the PH.

2.  However, the Board is not confined to strict adherence to Army regulations.  Therefore, the applicant’s witness statements have been carefully considered.  Only one of the three individuals stated that he witnessed the applicant being blown backwards by the concussion of a mortar blast.  One of the statements is too vague to be of any support to the applicant.  However, it is noted that both of these statements indicate that the applicant was carrying crates of ammunition.  The last statement from the applicant’s lieutenant notably lacks any mention of the applicant being injured by a mortar blast.  To the contrary, the lieutenant specifically opines that the applicant injured his back while moving 100 to 200 pound ammunition crates and heavy timbers.

3.  Therefore, it would appear that while the applicant may have been knocked off his feet by the concussion of a mortar blast, any injury to his back was caused by strenuous lifting.  Since lifting injuries are not the result of hostile action, the applicant is not entitled to the PH.

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:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

____dsj__  ___jam __  ___mhm   DENY APPLICATION

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

INDEX

CASE ID	AR2002077883	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030520	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.