IN THE CASE OF: BOARD DATE: 19 January 2016 DOCKET NUMBER: AR20150005326 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 and award of the Purple Heart. 2. The applicant states, in effect, that the Board did not read all the evidence he submitted in support of his previous applications. The Board determined he was not authorized the Purple Heart because his wound resulted from an accident. He argues the rules for award of the Purple Heart changed in 1993 authorizing its award to individuals wounded as the result of friendly fire. He contends that he and another Soldier, Lxxxx Axxxx, qualify for award of the Purple Heart based on these new rules. 3. The applicant provides: * six witness statements * his congressional inquiry * a newspaper article, "Army Guns Help Out Marines" * the Presidential Unit Citation (PUC), 3rd Marine Division CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous reconsideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC82-11386, on 7 July 1993. 2. The applicant provides as new evidence a witness statement which was not previously reviewed by the ABCMR and warrants consideration by the Board. 3. During its second review the Board determined there was no evidence to show he was recommended for award of the Purple Heart nor did his medical records show he was treated for injuries as a result of an explosion. Consequently, his request for award of the PH was denied. 4. The applicant served in Vietnam from 24 September 1966 to 14 May 1967 while assigned as a gunner with B Battery, 1st Howitzer Battalion, 40th Artillery. 5. His record is void of any documented medical treatment for injuries sustained as the result of an artillery explosion. 6. The applicant requested assistance from his congressional representative for award of the Purple Heart. In his request he stated that while on active duty with B Battery, 1st Battalion, 40th Artillery, he along with two of his men were injured while returning fire during an enemy assault. He included the following new witness statement not previously considered by this Board written by the supervisor of the firing battery. The witness states that in February 1967, they were firing for a patrol from one of the companies who had been ambushed by the North Vietnamese. Field artillery units operated 24 hours a day, 7 days a week. The crews were in the process of going on duty and eating. a. On this day the crews were unpacking ammunition that had just been delivered to their firing site. As they were getting the ammunition ready to fire, there was an explosion at their gun. One Soldier sustained a severe eye injury and the applicant was found lying 10 or 15 feet from the injured Soldier and gun. The eyewitness said the applicant had shrapnel wounds, was bleeding from the nose and ears, and he was spitting up blood. The witness emphasized that American artillery ammunition was shipped and was bore safe. It does not malfunction on its own. b. After checking with the Marine Explosive Ordnance Disposal (EOD) he was told that the round had been "booby trapped." There was no canister in the end that exploded, only powder. Artillery powder does not explode, it burns! He believes the Marine EOD blew-up the projectile that was left. The only investigation done that he is aware of was done by the battery commander. From what he was told by the applicant and the other injured Soldier, he feels that the powder end of the canister was booby trapped with one or more hand grenades because from the time they removed the covering to the canister to the explosion, approximately three to five seconds had elapsed. c. The commander informed him that the Battalion S-2 (Intelligence) officer denied the award of the Purple Heart because it was a malfunction of the artillery round. Based on the witnesses’ 20 years of experience firing artillery weapons systems, he never saw a round malfunction until it was well down range. He strongly disagrees with the Battalion S2 officer’s statement and recommends award of the Purple Heart for injuries incurred based on the enemy booby-trapping the ammunition projectile canister. 7. In addition, the applicant provided witness statements previously considered by the Board. a. His battery commander, a retired U.S. Army lieutenant colonel, stated that based on his observations the "jungle-pack" was indeed tampered with and not by "friendlies." The Battalion S2 officer who conducted the investigation who was from Dong Ha never came to the battery’s location. In his report he stated that the round just went off. b. The firing battery medic, a retired U.S. Army major, stated that on 7 February 1967 at a location known as "The Rock Pile" located in South Vietnam, while supporting elements of the 3rd Marine Division, the applicant and two other Soldiers were injured by an explosive device compromised by actions taken by individuals not belonging to the unit. The applicant’s helmet was ripped from his head by the explosion and he was thrown through the air into his howitzer. He sustained lacerations to both arms and chest. He treated the applicant at the scene and the applicant was evacuated to the battalion aid station. c. A fellow Soldier stated that while delivering and unloading ammunition to B Battery located at "The Rock Pile" there was an explosion to the rear of one of the guns. As they were conducting a live fire mission, they thought it was incoming fire from the enemy and off loaded as quickly as possible and left the area. After returning to base camp he was told to pick up another resupply as soon as possible and deliver it because there had been an explosion of a round being prepped for firing and most of the ammunition that had been delivered was from the same lot. There was a "suspension" that the lot was damaged until the cause of the explosion could be determined. The ammunition was picked up and returned to the main ammunition point. He believes the round was sabotaged because earlier they had problems with cut "commo" wire to C4 charges and claymores in the ammunition depot, as well as, numerous tires were slashed on parked military vehicles by unknown persons. Previous to this incident he found an opened box of fragmentation grenades in the depot. Upon his investigation and questioning of the platoon he could find no reason for the open box and the missing grenades. He since learned that almost the entire area that they were in contained enemy tunnels. This led him to believe that the round may have been tampered with and a firing mechanism from the grenade installed in the powder of the round. There is absolutely no possible reason for the brass casing to be missing from a "jungle pack" and no way to cause the powder to explode without another source of detonation. d. Another fellow Soldier stated that due to the sustained rate of fire an ammunition resupply run became necessary, and a resupply run was ordered. Upon arrival at B Battery’s location he found the applicant and two other Soldiers had suffered horrific injuries. Medical personnel were frantically treating these soldiers and he witnessed the evacuation of these individuals. All three Soldiers incurred their wounds as a direct result of hostile action in an area that was known for its intensity of combat action. 8. The applicant also provided a newspaper article recounting how U.S. Army artillery support saved the 3rd Marine Division. Further, he provided a copy of the PUC citation awarded to the 3rd Marine Division (Reinforced) for heroism and outstanding performance of duty in action against the North Vietnamese Army and Viet Cong Forces in the Republic of Vietnam from 8 March 1965 to 15 September 1967. 9. A review of the Adjutant General's Office Casualty Division's Vietnam Casualty Listing does not show the applicant's name as a casualty. 10. A review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), 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 the Purple Heart pertaining to the applicant. 11. Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded 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. The wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record. There are numerous examples of injuries or wounds which clearly do not justify award of the Purple Heart. Among the examples include accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; hearing loss and tinnitus; abrasions and lacerations (unless of a severity to be incapacitating); bruises (unless a direct impact of enemy weapons and severe enough to require treatment by a medical officer); soft tissue injuries and first degree burns. 12. 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 AND CONCLUSIONS: 1. The applicant requests reconsideration and award of the Purple Heart. 2. The criteria for award of the Purple Heart requires the submission of substantiating evidence to verify the injury/wound was the result of hostile action, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record. The Purple Heart may also be awarded 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. 3. The applicant’s contention and witness statements were carefully considered. His previous applications and Board decisions were also reviewed. The fact that he was wounded (presumed bruises, tinnitus, shrapnel, abrasions and lacerations) when an artillery round exploded while he was operating his howitzer artillery system is supported by the witness statements. However, it must be noted that all the witness statements describe events that happened prior to and after the explosion. None of the witnesses state they were physically present when the ammunition exploded and the applicant was allegedly injured. 4. Upon review of the statements, the battery’s role as described by the applicant shows they were in a "fire fight," described by another witness as "supporting the beleaguered Marine patrol by firing almost continually" – providing a "ring of steel," and described by another Soldier as "unpacking ammunition and preparing it for fire" during a shift change where half the crew was eating and the other half was going on fire patrol duty. These differing accounts make it difficult to determine if the applicant was directly engaging the enemy at the time the artillery round exploded and if the enemy directly caused the "friendly" round to detonate prematurely by tampering with it. 5. The witnesses’ contentions that the artillery round was booby trapped or tampered with by the enemy or someone outside the unit cannot be confirmed as there is no official evidence to support their conclusion. However, the witness statements do make reference to an investigation conducted by the Battalion S2 which determined that the rounds just "went off." Although it is true that artillery rounds do not just go off, it is also true that the improper handling of ammunition, defective ammunition, and failure to follow proper misfire procedures can lead to accidents. In a situation where the round was mishandled or the round was defective, any injury sustained would not be the result of hostile action or friendly fire but rather accidental as previously determined by the Board. 6. Having considered all the evidence, there is insufficient evidence that the applicant’s wounds were the result of enemy action, sabotage, or friendly fire. The battery medic said he initially treated the applicant who was then medically evacuated, yet the applicant’s record and Army Surgeon General Records do not support his receiving medical treatment. Thus, it is concluded that the severity of the applicant’s injuries do not meet the criteria for award of the Purple Heart as they were not officially documented in multiple acceptable sources. 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 AC82-11386Z, dated 7 July 1993. ___________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) AR20150005326 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005326 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1