PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           24 June 2003       
	DOCKET NUMBER:   AR2002083056

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Ronald E. Blakely		Member	
	Mr. Frank C. Jones		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests reconsideration of his earlier appeal to correct his military records by awarding him the Purple Heart.

3.  The applicant states, in effect, that his military career ended due to the combat injuries he received in the defense of this nation.  He contends that upon his departure from Vietnam he was told that a recommendation for award of the Purple Heart was submitted for injuries sustained in the rocket attack and subsequent vehicle accident on 16 February 1969.  At the time of his disability retirement in 1973 he was still under the impression that the paperwork submitted in 1969 was just slow in getting processed and he had faith in the system that he would receive the Purple Heart.  However, several years after his retirement he found out about a policy made by the command of the 5th Special Forces Group where the majority of awards and decorations submitted in Vietnam came to a halt.  He states at that point he petitioned the Army Board for Correction of Military (ABCMR) for award of the Purple Heart; however, his request was denied by the ABCMR on 13 January 1988.       

4.  The applicant contends that it has taken him 13 years to obtain new evidence which substantiates the requirements of Army Regulation 600-8-22 (Military Awards) pertaining to the Purple Heart.  He points out that the regulation states that an injury caused by a vehicle or aircraft accident resulting from enemy fire is an example of an enemy-related injury which clearly justifies award of the Purple Heart.  He also points out that the regulation states that if an individual is injured as a result of a vehicle accident caused by enemy fire the decision to award the Purple Heart would be made in favor of the individual.

5.  Incorporated herein by reference are military records which were summarized in a Memorandum of Consideration prepared to reflect the consideration of Docket Number AC86-07090 by the ABCMR on 13 January 1988.  The ABCMR denied the application based on failure to timely file.

6.  In support of his claim for award of the Purple Heart, the applicant submits 
18 enclosures (37 pages) which are listed on pages 1 and 2 of his continuation sheet of his application.  

7.  A Line of Duty determination, dated November 1972, shows the applicant was injured on 16 February 1969 in a jeep accident which resulted from an enemy rocket attack. 

8.  The applicant's PEB Proceedings, dated 30 November 1972, show the applicant sustained a crushing injury to his left leg and foot in a jeep accident on 
16 February 1969 in Vietnam.

9.  The applicant's submissions are new evidence and will be considered by the Board.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound 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, and the medical treatment must have been made a matter of official record.  The regulation also states that an injury caused by a vehicle or aircraft accident resulting from enemy fire is an example of an enemy-related injury which clearly justifies an award of the Purple Heart. 

11.  Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence has been submitted.

12.  Army Regulation 15-185 provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision.  If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

CONCLUSIONS:

1.  Army Regulation 600-8-22 (Military Awards) states that an injury caused by a vehicle or aircraft accident resulting from enemy fire is an example of an enemy-related injury which clearly justifies an award of the Purple Heart. 

2.  The LOD determination shows the applicant was injured in a jeep accident resulting from an enemy rocket attack on 16 February 1969 in Vietnam.  Therefore, the applicant is entitled to award of the Purple Heart and correction of his military records to show this award.   

3.  In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would rectify an injustice.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned be awarded the Purple Heart for injuries sustained as a result of hostile action on 16 February 1969 in Vietnam.

BOARD VOTE:

MKP____  REB____  FCJ_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_Margaret K. Patterson
		        CHAIRPERSON

INDEX

CASE ID	AR2002083056	
SUFFIX		
RECON	Yes	
DATE BOARDED	20030624	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	107.0015	
2.		
3.		
4.		
5.		
6.