IN THE CASE OF: BOARD DATE: 20 May 2008 DOCKET NUMBER: AR20080003597 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. Through a Member of Congress, the applicant requests, in effect, reconsideration of his earlier petition to be awarded the Purple Heart (PH). 2. The applicant states, in effect, that he should receive the PH for wounds he received in the Republic of Vietnam (RVN). He states that he was wounded in Qui Nhom, RVN, in June 1969, and never received the PH. 3. The applicant provides the following document in support of his reconsideration request: Congressional Inquiry; Clinical Record Cover Sheet (DA Form 8-275-3), dated 14 June 1969; Chronological Records of Medical Care (SFs 600) for treatment on 7, 10, 21 and 24 June 1969 and 19 August 1969; and Consultation Sheet (SF 513), dated 21 June 1969. 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 AR2001060866, on 16 October 2001. 2. During its original review of the case, the Board found insufficient evidence to show the applicant was ever wounded as a result of enemy action while serving in the RVN, or that he was ever recommended for or awarded the PH by proper authority while serving in the RVN. 3. The applicant provides medical treatment records for the period 7 June through 21 August 1969, and a Congressional Inquiry that indicates the Board did not thoroughly consider the applicant's original application and outlines issued related to 3 findings of the Board as new evidence. 4. The applicant's record shows that he was inducted into the Army and entered active duty on 25 June 1968. He was trained in and awarded military occupational specialty (MOS) 67N (Helicopter Repairer), and specialist four (SP4) is the highest rank he attained while serving on active duty. 5. The applicant's Enlisted Qualification Record (DA Form 20) shows he served in the Republic of Vietnam (RVN) from 18 December 1968 through 28 January 1970, and that during this RVN tour, he was assigned to the 129th Assault Helicopter Company, performing duties in MOS 67N as a helicopter repairer. Item 40 (Wounds) is blank, and the PH is not included in the list of awards contained in Item 41 (Awards and Decorations). Item 48 (Date of Audit) shows the applicant last audited this record on 22 January 1970. 6. On 27 January 1970, the applicant was honorably released from active duty after completing 1 year, 7 months, and 2 days of active military service. The separation document (DD Form 214) he was issued at the time does not include the PH in the list of earned awards contained in Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), and the applicant authenticated the document with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his separation. 7. The applicant provides a DA Form 8-275-3, dated 14 June 1969, which shows the applicant was treated for a fragment wound to his left cheek. This document contains the entry "AI: Hit by frag in barracks on 7 June 1969 approximately 1400 hrs at Lane Field" which confirms the applicant's wound was accidently incurred (AI). He also provides medical treatment records that confirm he was treated for this wound on several occasions between 7 June and 19 August 1969. None of these treatment records indicate the wound was received as a result of enemy action. 8. The Congressional Inquiry takes issue with three findings of the original Board panel. It states that the reason the applicant's separation document and record did not include the PH was because the applicant had not been authorized the award. It also claims that medical and dental records of wounds the applicant received as a result of hostile action are provided, and that the applicant believes a review of reports pertaining to the daily action of his company during the month of June 1969 will substantiate his allegation that his unit received mortar rounds and other small arms fire. 9. During the review of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster. There was no entry pertaining to the applicant on this roster. 10. Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards. Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH. It states, in pertinent part, that in order to award a PH there must be evidence that the wound for which the award is being made was received as a result of enemy action; that the wound required medical treatment by medical personnel; and a record of the medical treatment must have been made a matter of official record. Paragraph 2-8h contains examples of wounds which clearly do not justify award of the PH. Included in this list is accidental wounding not related to or caused by enemy action. 11. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). Chapter 2 contains guidance on the establishment and functions of the ABCMR. It states, in pertinent part, that the ABCMR is not an investigative body, and will consider applications properly brought before it based on the evidence of record and independent evidence provided. It further stipulates that the ABCMR begins its consideration of each case with the presumption of administrative regularity, and that the applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for reconsideration of his earlier petition to be awarded the PH, the supporting medical and dental treatment records, and the findings outlined in the Congressional Inquiry were carefully considered. However, by regulation, in order to support award of the PH, there must be evidence that the wound for which the award is being made was received as a result of enemy action. 2. The medical and dental treatment records provided by the applicant while confirming he sustained and was treated for a wound to his left cheek, do not contain verification that the wound was received as a result of enemy action. To the contrary, the DA Form 8-275-3 provided contains an entry confirming the wound was accidently incurred. 3. Further, Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action, and the applicant audited this record on 22 January 1970, during his separation processing. In effect, this audit was his confirmation that the information on record, to include Item 40, was correct at that time. His name is also not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties. 4. In addition, since the applicant was clearly treated for the wound in question by military medical personnel, as evidenced by the medical and dental treatment records provided, it must be presumed that had the wound been received as a result of enemy action, the appropriate entry would have been made in Item 40 of the applicant's DA Form 20 and on the Vietnam Casualty Roster. It is also reasonable to conclude that the PH would have been recommended by the applicant's chain of command, and awarded by the appropriate medical/hospital or unit commander at the time. 5. Given the only medical record that addresses how the wound was incurred indicates it was accidental and absent any evidence of record or independent evidence that corroborates the applicant's claim that the would was received as a result of enemy action, the regulatory burden of proof necessary to support award of the PH has still not been satisfied in this case. Absent any confirmation that the wound in question was received as a result of enemy action, it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to support award of the PH in this case. 6. The issues raised in the Congressional Inquiry submitted in this case were also considered. However, by regulation, the Board is not an investigative body, and will consider applications based on the evidence of record and independent evidence provided for review. The regulation further stipulates that the Board begins its consideration of each case with the presumption of administrative regularity, and that the applicant has the burden of proving an error or injustice by a preponderance of the evidence. In this case, there is no indication that the applicant ever raised the PH issue in the more than six months he remained on active duty after the wounding in question, or in the more than 30 years that passed prior to his original application to this Board. Therefore, the regulatory burden of proof necessary to prove error or injustice still has not been met in this case. 7. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement or that would support amendment of the original Board decision. 8. 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 the applicant's 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 AR2001060866, dated 16 October 2001. _________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) AR20080003597 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080003597 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1