IN THE CASE OF: BOARD DATE: 10 March 2016 DOCKET NUMBER: AR20150008693 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, in effect, reconsideration of his earlier request for correction of his medical records to show he sustained injuries that required treatment while involved in combat operations and award of the Purple Heart. 2. The applicant states: * he suffered a broken arm, lacerations, and bruising to his body directly related to combat operations * while hanging from a McGuire rig from a helicopter in Vietnam, during extraction from an operation to escape the enemy, they came under direct enemy fire * the pilot had to take evasive actions that resulted in his team being dragged through the trees while hanging from an extraction rope * the helicopter crew had to cut away the ropes from the helicopter with his team still hanging below; they crashed through the trees to the jungle floor * he previously submitted a request to this Board in 2009 but his request was denied * he recently became aware of the Haselwander v. McHugh, Secretary of the Army, decision that was adjudicated by this Board * his case is similar to that case and in light of that decision, he should also be awarded the Purple Heart 3. The applicant provides: * VA Form 21-4138 (Statement in Support of Claim), from himself, (previously submitted) * VA Form 21-4138, from a former unit member (previously submitted) * newsletter article (previously submitted) * new statement from a former unit member * photograph of an individual in a cast * internet article pertaining to Haselwander v. McHugh, Secretary of the Army, case 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 AR20110013882 on 19 January 2012. 2. The applicant provides a new statement from a former unit member as well as an internet article regarding the Haselwander v. McHugh case, which were not previously reviewed by the ABCMR. Therefore, they are considered new evidence and as such warrant consideration by the Board. 3. The applicant enlisted in the Regular Army (RA) on 10 September 1968 and he held military occupational specialties (MOS) 11B (Light Weapons Infantryman). He completed the Airborne, Ranger, Recondo, and Special Forces Underwater Operations Courses. 4. He served in Vietnam from 13 October 1969 to 4 October 1970. He was assigned to: * Company B, 1st Battalion, 52nd Infantry, 198th Infantry Brigade, 23 October 1969 to 5 January 1970 * Company G, 75th Infantry Regiment (Ranger), 6 January to 4 October 1970 5. He was honorably discharged on 1 July 1971 for the purpose of immediate reenlistment. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded or authorized the: * National Defense Service Medal * Parachute Badge * Ranger Tab * Vietnam Service Medal * Combat Infantryman Badge * Vietnam Campaign Medal with Device (1960) * 2 overseas service bars 6. He reenlisted in the RA on 2 July 1971 for a 6-year period and was honorably discharged on 30 May 1977. His DD Form 214 shows he was awarded or authorized, in addition to the above awards, the: * Bronze Star Medal * Air Medal * Vietnam Cross of Gallantry with Palm Unit Citation * Army of Occupation Medal - Berlin * Good Conduct Medal (2nd Award) 7. He reenlisted in the RA on 31 May 1977 for another 6-year period and attained the rank/grade of master sergeant (MSG)/E-8. 8. He was honorably discharged from active duty on 30 May 1983 upon the completion of his most current enlistment contract. His DD Form 214 for this period shows in addition to the above awards, the: * Master Parachute Badge * Scuba Diver Badge * Army Service Ribbon * Meritorious Unit Commendation * Overseas Service Ribbon * NCO Professional Development Ribbon * Good Conduct Medal (4th Award) 9. On 19 January 2012, the Board considered his request for award of the Purple Heart but found he had not met the burden of proof necessary to support award of the Purple Heart. 10. There is no evidence of record that shows he was injured or wounded as a result of hostile action or that he was awarded the Purple Heart: a. Item 40 (Wounds) of his multiple DA Forms 20 (Enlisted Qualification Record) does not show a combat wound or injury and item 41 (Awards and Decorations) of these forms does not list the Purple Heart as an authorized award. b. His name is not shown on the Vietnam casualty roster, a compilation of most of those who were wounded in Vietnam, that is used to verify eligibility for the Purple Heart. c. His records do not contain an official Army notification or a Western Union telegram notifying his next of kin of an injury. d. His available service medical records do not show a combat injury or treatment. He provides: (1) Photograph of an individual with his arm in a cast. (2) Statement, dated 27 September 2005, from an individual who states that he was the first sergeant (1SG) of G Company, 75th Infantry, attached to the Americal Division in Vietnam. From November 1969 to October 1970, he remembers a 6-man team was compromised and had to be extracted. The extraction helicopter attempted to extract the team when they were at a safe distance from the enemy. When the members were all locked to the rope, the helicopter lifted. They immediately began taking enemy fire from the front and changed direction. At that time the team had to be cut lose or risk being injured or killed. The gunships continued to place fire on the enemy until the team was successfully extracted. The applicant received severe injuries with a dislocated and broken arm. One of his legs was in a full length splint and one side of his body was bruised from his shoulder to his foot. (3) Newsletter article, dated 15 May 1970, Americal Division. It describes an incident wherein members of Company G, 75th Infantry found themselves inserted behind enemy lines. The team was extracted from the mountainous terrain of the 198th Infantry area of operations. One sergeant described the incident. He states that it was one evasive action and a series of timely decisions that allowed a long range reconnaissance patrol (LRRP) to evade a superior enemy. Soon after the helicopters arrived and sprayed the surrounding area, the team was extracted by a McGuire rig lowered through the trees. (4) Statement, dated 26 September 2005, from Mr. PN who describes the mission that he was involved in. He was part of a team that was inserted very close to the enemy location. They started to evade the enemy and as they moved up to a ridge they would stop and listen. After several hours they all heard a dog barking and saw several enemy soldiers. They moved out and located a landing zone for extraction. When the helicopter arrived they had to use a McGuire rig and they were all pulled out while receiving enemy fire. The ropes got tangled in tree limbs and as a result they were cut loose. The fall resulted in the applicant breaking his arm and he had several lacerations. He himself received a back injury and lacerations. Another member was also injured but he (the author) does not remember his condition. (5) Notarized statement, dated 3 April 2015, from Mr. SRG who states he served with the applicant in Vietnam. Company G performed LRRP in 4 to 6 man teams. The nature of their training and missions put them in situations where they had to be extracted from hostile areas by a McGuire rig, a series of 1/2 inch nylon ropes, 120 feet long, one for each man, weighted with sandbags to get the rope to the ground from a hovering helicopter. In May 1970, the applicant was a team leader of the LLRP team that required such extraction. However, the extraction did not go as planned. Either through pilot error or hostile fire or a combination of both, the helicopter lost altitude and dragged the team through the trees, breaking the rope and dropping the team back into the jungle. The applicant sustained several injuries to his right arm and right leg, and bruises to his the neck and heel. His injuries were not caused by shrapnel, gunshot, punji stick, or pyrotechnics. They were caused by hostile enemy activity during a combat mission with G Company. His wounds required the attention of a medical officer. 11. Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained while in action against and enemy or 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 medical personnel, and the medical treatment must have been made a matter of official record. a. Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows: injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy generated explosions. b. Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: frostbite or trench foot injuries; heat stroke; food poisoning not caused by enemy agents; chemical, biological, or nuclear agents not released by the enemy; battle fatigue; disease not directly caused by enemy agents; accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; self-inflicted wounds, except when in the heat of battle and not involving gross negligence; post-traumatic stress disorders; and/or jump injuries not caused by enemy action. 12. U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) stated the authority to award the Purple Heart was delegated to hospital commanders. It directed that all personnel treated and released within 24 hours would be awarded the Purple Heart by the organization to which the individual was assigned. Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam would be awarded the Purple Heart directly by the hospital commander rendering treatment. 13. In Haselwander v. McHugh, the case came before the ABCMR on a remand from the U.S. District Court for the District of Columbia. The court directed the ABCMR to reconsider the applicant's request for correction of his medical records and award of the Purple Heart. a. The applicant filed a complaint in the District Court in July 2010, challenging the decision made by the ABCMR to deny him award of the Purple Heart. On 19 July 2012, the District Court issued a Memorandum of Opinion denying the applicant's motion. The applicant appealed the District Court decision to the Court of Appeals for the District of Columbia Circuit. On 19 December 2014, the Court of Appeals reversed the judgment of the District Court and vacated the Board decision, remanding the case to the ABCMR on 20 February 2015 for further proceedings consistent with the opinion of the Court of Appeals. The opinion of the Court of Appeals, as filed by the Senior Circuit Judge, is summarized as follows: (1) The applicant states that undisputed evidence in the records shows he was injured in an enemy attack on 6 June 1969 in Vietnam and that he was treated for his wounds by a member of the Army medical staff. On the basis of this evidence, he claims that his medical records should be corrected and he should be awarded the Purple Heart. (2) The Secretary of the Army argues in his brief on appeal that because the applicant never requested that the Board amend his medical records; it is improper for him to raise this issue upon appeal. The Court of Appeals disagreed, opining that the error and injustice in the applicant's record needed correction, namely the omitted medical documentation of his wounds sustained in hostile action and the medical treatment of those wounds were clearly before the Board for correction, even if not specifically requested by the applicant. (3) Even if specific arguments are not expressly made to an agency, they may still be raised on appeal if the agency reasonably should have understood the full extent of the applicant's argument. It is sufficient if the issue was necessarily implicated in the agency proceedings. Additionally, the Secretary's argument was never raised with the District Court, thus it forfeited. (4) The applicant needed a correction to his medical records in order to be eligible for the Purple Heart and he knew this when he filed his application with the Board. The supporting statement that he filed with his application quite clearly indicated that an error in his medical records was preventing him from receiving the Purple Heart. With his application, he gave the Board two witness statements attesting to the fact that he suffered wounds in hostile action which required medical treatment as well as photographs and official reports from his brigade and platoon detailing the events on the day he was wounded. (5) The Board never found that any of the evidence submitted by the applicant lacked credibility. Nor did the Board find that the applicant failed to prove he was wounded and that he received medical treatment. The Board's decision denying his application for reconsideration rested solely on two findings discussed in the Board's 2009 Record of Proceedings. c. The Board reconsidered the case on 5 May 2015 and determined that none of the applicant's available military medical or personnel records referenced him being wounded in action on 6 June 1969 and receiving medical treatment for those wounds thus entitling him to award of the Purple Heart. (1) Unit reports supplied by the applicant corroborated that an enemy-triggered explosion occurred on 6 June 1969 resulting in two unnamed Soldiers from the unit requiring medical treatment due to injury. (2) The photographs of the applicant while bandaged were presumably taken after receiving treatment for the injuries he sustained from the report-referenced explosion. While supportive of his claim, such photos, even when accompanied by other evidence, do not supplant the need to provide medical documentation of participation in hostile action resulting in wounds and the treatment thereof. (3) The two witness statements provided lend additional credence to his contention he was one of the two unnamed Soldiers listed in the unit reports that were injured by hostile action and received treatment. The witness statements were made 40 years after the event, when the properties of time and distance tend to erode the memory, as noted in his stated recollection that the explosion occurred in August 1969 and not in June 1969. Despite that fact, the sincerity and veracity with which these statements were made are not called into question and they certainly provide an independent corroboration of the applicant's general assertions. Nonetheless, they do not constitute what the Board would normally consider documentation of medical treatment made a matter of the official military record. (4) Notwithstanding the published guidance requiring the medical treatment to have been made a matter of official record, the information provided as supporting evidence, when viewed in its totality, is sufficient to reasonably conclude the applicant was wounded as a result of hostile action and received medical treatment for those wounds on 6 June 1969, which should have been entered into his medical records at the time of the event but was not. (5) As a matter of equity, the Board determined his records should be corrected to reflect he was wounded as a result of hostile action and received medical treatment for those wounds. The Board also determined that his available official military personnel file (OMPF) contained very little medical documentation, none of which lends itself to amendment including an annotation of treatment for wounds received in action. In lieu of correcting his medical records, the Board found it appropriate to amend item 40 of the applicant's DA Form 20 to show he received wounds in action on 6 June 1969 for which he received medical treatment. DISCUSSION AND CONCLUSIONS: 1. The applicant in this case does not meet the criteria for award of the Purple Heart. The criteria for the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required medical treatment by medical personnel, and the medical treatment must have been made a matter of official record. 2. The three components to support award of the Purple Heart are not present here. There is no record of an injury caused by hostile action anywhere in his records. There are no medical records to support treatment was provided at the time of the injury, and there are no medical treatment records at all. Other indicators such as the applicant's listing on the Vietnam casualty roster, an entry on his multiple DA Forms 20, a casualty feeder report, and/or a Western Union telegram are also absent. 3. The applicant's case differs from that of Haselwander: a. Haselwander submitted two witness statements attesting to the fact that he suffered wounds in hostile action which required medical treatment as well as photographs and official reports from his brigade and platoon detailing the events on the day he was wounded. The applicant in this case describes an extraction that went bad due to what appears to be an accident. The witnesses are unsure as to what caused the ropes to tangle or cut loose from the helicopter when the Soldiers on the rope entered the tree line. One of the witnesses states the reason for the ropes being cut was either a pilot error or hostile action or a combination of both. b. Haselwander submitted unit reports corroborating that an enemy-triggered explosion occurred on 6 June 1969 resulting in two unnamed Soldiers from the unit requiring medical treatment due to injury. The newsletter provided by the applicant here mentions a team extraction by a McGuire rig but does not mention any ropes being cut due to enemy fire or that Soldiers were injured as a result. None of the events described by the witnesses, some 45 years later, were mentioned in the newsletter that was issued shortly after the event. c. The applicant's issue is further complicated in that there are no medical records provided by the applicant or in his OMPF, and there are no other documents that could corroborate the alleged injury. . 4. Notwithstanding the applicant's sincerity, in the absence of additional documentation that conclusively confirms he suffered an injury that was caused by the enemy or as a result of enemy action, there is insufficient evidence upon which to correct his medical record to show he was wounded in action and then subsequently award him the Purple Heart. 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 AR20110013882 on 19 January 2012. _______ _ _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) AR20150008693 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150008693 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1