IN THE CASE OF: BOARD DATE: 3 November 2015 DOCKET NUMBER: AR20150014782 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 remand action, dated 17 July 2015, the United States District Court, Northern District of Florida, Pensacola Division, requests the Army Board for Correction of Military Records (ABCMR) to clarify whether it found: * that the applicant did not provide sufficient reliable evidence that he sustained a wound in combat, or * that the Board could not award him the Purple Heart because there is no contemporaneous medical record, irrespective of any corroborating evidence submitted by the applicant 2. The applicant filed a complaint with the United States District Court, Northern District of Florida, Pensacola Division, on 20 August 2015, in which he requested the Court set aside or vacate the 17 May 2012 final decision of the ABCMR and remand the ABCMR to issue a decision that corrects his military records by awarding him the Purple Heart in accordance with applicable regulations and any other appropriate relief deemed necessary by this Court. 3. In his complaint the applicant states: a. He voluntarily enlisted in the U.S. Army after the start of the Vietnam War. After attending basic training, advanced infantry training, and jump school, he was assigned to Company C, 2nd Battalion, 327th Infantry, 101st Airborne Division, in Vietnam. He operated as a "search and destroy point man" within Company C, and as a result he performed numerous missions where his life and the lives of his fellow Soldiers were in jeopardy. b. On 5 May 1968, the applicant and Company C were attacked by enemy forces. During this attack, he suffered an injury to his left shoulder resulting from an enemy mortar round. He was treated for his injury on 5 May 1968 by Mr. Mxxx Pxxxxx, a medic assigned to Company C, but no record was made of his combat injury because Mr. Pxxxxx was out of medical treatment report forms. Because no official record was made of his combat injury, he was not awarded the Purple Heart, as is customarily done after any U.S. military member is either wounded or killed in action. c. He searched over 40 years for Mr. Pxxxxx, so that he could gather documentation to prove his combat injury and thus receive a Purple Heart. After finding Mr. Pxxxxx on an online Vietnam Veteran message board in January 2008, he filed an application to correct his military records with the ABCMR. As part of his initial application he included the following documentation: * signed and sworn DD Form 149 (Application for Correction of Military Record) * self-authored narrative outlining the event on 5 May 1968 that led to his combat injury * signed and sworn affidavit by Mr. Pxxxxx confirming that Mr. Pxxxxx treated him on 5 May 1968 for a shrapnel wound to his left shoulder, but that no formal record was made due to a lack of medical treatment report forms * his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * three photographs of him in Vietnam * letter awarding him the Bronze Star Medal for heroism after he volunteered to locate and save a separated fellow Soldier despite facing enemy fire in an ambush killing zone * letter awarding him the Army Commendation Medal with "V" for valor after he stumbled upon seven Vietnamese soldiers that were setting up an ambush – he ran into the group of enemies and fired as he ran d. On 22 July 2009, the ABCMR denied his application because although it found Mr. Pxxxxx's sworn affidavit to have some credibility, he did not provide additional proof that Mr. Pxxxxx was indeed a medic assigned to Company C, and if so, that Mr. Pxxxxx was on duty in the field on the date of his combat injury. e. As permitted by federal law, in October 2009 he filed an appeal of the ABCMR decision. In an attempt to satisfy the ABCMR's issue with his previous application he provided the following additional documentation to the ABCMR as a part of his appeal: * a signed and sworn appeal * military forms showing Mr. Pxxxxx was stationed with Company C during the time period of his combat injury * a signed and sworn affidavit written by Mr. Jxxxx A. Wxxx, Senior Medic with Company C, confirming that Mr. Pxxxxx was a medic alongside Mr. Wxxx with Company C for the time period from March to June 1968 (the time period of his combat injury) * a letter written by Mr. Txxxxx E. Qxxx, a field medic in Vietnam, confirming that Mr. Pxxxxx was a medic in Company C and that Mr. Qxxx and Mr. Pxxxxx worked together as medics in Vietnam during the time period of his combat injury, included a photograph of Mr. Pxxxxx in Vietnam * a self-authored letter summarizing his comprehensive response to the ABCMR's findings in its previous decision f. On 26 May 2010, the ABCMR issued a final administrative denial of his application. g. On 10 August 2010, after receiving a final denial from the ABCMR he provided the ABCMR with the following documentation to correct its technical error, the denial of his appeal because Mr. Pxxxxx appeared to be reassigned to HHC before his combat injury occurred. He also provided the following: (1) A letter from Major Jxxx W. Mxxxxx, Commanding Officer and Tactical Operations Center Duty Officer in Vietnam stating "all medics serving in airborne infantry companies were assigned to the battalion medical platoon in the battalion HHC. Medics were then attached to the rifle companies….Once a medic was attached to a company, he typically remained with that company until he was medically evacuated or rotated to different duties in the rear area or stateside." (2) A letter from Mr. Fxxxx Dxxxxxxx, a fellow service member in Company C, stating that "as a matter of fact, all our medics were assigned to HHC….The medics were then attached to the difference companies. This is the way it worked all the time he was in Vietnam." (3) A Sworn "Statement in Support of Claim Form" signed by Mr. Wxxx clarifying his previous notarized letter stating, "I know for a fact that medic Mxxx Pxxxxx…was attached to Company C during the month of April 1968 and towards the end of May 1968. He knows this to be true as he was senior medic for Company C from early March 1968 until 25 April 1968." (4) A letter written by Mr. Sxxxxxx Mxxxxxxx, Jr., a Soldier in Company C, stating, "all the medics in our battalion were in HHC from which we were assigned to various field companies." (5) A Sworn "Statement in Support of Claim Form" signed by Mr. Rxxxxxx J. Wxxxx, a fellow Soldier in Company C, stating "[Applicant] and I worked as a team. On 5 May 1968, [Applicant] was wounded by mortar frags. On this day [Applicant] was alighting from a chopper that would not come down close to the ground, and was made to jump from a distance of about 15 feet. While trying to engage in the firefight he was struck by mortar frags. He believes Doc Pxxxxx was the medic who treated [Applicant] for his wounds." (6) A sworn and signed affidavit written by Mr. Txxx Pxxxxx, a fellow Soldier in Company C, stating "[Applicant] and he also came under rocket attacks at different fire bases" (7) Polygraph test results and invoice, in which he paid for a polygraph test to be performed on himself, with "no deception indication" in response to the following questions: "On 5 May were you wounded by enemy mortar round?" and "Did you remain with your unit even though you were wounded?" h. On 18 January 2011, he received a final communication from the ABCMR in response to his providing the aforementioned additional documentation to correct its technical error. In its letter, the ABCMR stated that its previous decision on his appeal was its "final administrative action," and that any further proceedings must be before a court of competent jurisdiction. i. On 17 February 2012, in an attempt to resolve this matter, he and the Secretary agreed to stay this case and remand it to the ABCMR for a second reconsideration based upon all previous documentation in the Secretary's possession, in addition to all attachments to his initial complaint. j. On 17 May 2012, the ABCMR again denied his request for almost identical reasons as its previous denials. The ABCMR's reasons included: * no official records exist that corroborate his claim of a shrapnel wound to his left shoulder * no individuals claim to have witnessed him receive a shrapnel wound to his left shoulder * no official records exist that corroborate Mr. Pxxxxx's sworn statement that he treated the applicant on 5 May 1968 for a shrapnel wound to his left shoulder k. Because no official record exists, his claim was denied. The ABCMR's decision again lacks any sense of accuracy—each of the ABCMR's relied-upon facts are either plainly false or fully explained by his documentation, including: (1) The reason no official records exists that corroborate his claim of a shrapnel wound to his left shoulder was explained by Mr. Pxxxxx, the medic that personally treated his wound and stated, "it has been over 40 years, but I remember this event almost in detail. I made no report of the wound at the time; [I was] out of report forms." (2) The ABCMR's statement that no individual witnessed the applicant's wound is patently false. In fact, two separate individuals that served with him signed sworn statements indicating that they served with him and signed sworn statements indicating that they witnessed his wounding. (3) The ABCMR's statement that no official record exists that corroborates Mr. Pxxxxx's sworn statement that he treated the applicant on 5 May 1968 for shrapnel wound to his left shoulder is also patently false. Mr. Pxxxxx himself attested to treating the applicant for his injury and Mr. Wxxx provided a sworn statement that he witnessed Mr. Pxxxxx treating the applicant's injury. l. Despite ample evidence that proves he was injured by an enemy mortar round in battle and that a medic treated his injury (the requirements for issuance of a Purple Heart), the ABCMR denied his application for correction of his military records to include a Purple Heart. m. The decision of the ABCMR to deny his application and subsequent appeal for correction of his military records to include a Purple Heart is arbitrary, capricious, and unsupported by substantial evidence. The ABCMR failed to properly evaluate the overwhelming and substantial evidence that proves he was injured by enemy mortar round and subsequently treated by a medic in Vietnam. n. He requested the Court set aside the 22 July 2009, 26 May 2010, and 17 May 2012 decisions of the ABCMR and award him a Purple Heart in accordance with applicable regulation and any other appropriate relief deemed necessary by the Court. 3. The Order Staying Case and Remanding stated: a. The Court previously granted summary judgment in favor of the United States. At the time, the Court noted that it did not question the veracity of the applicant's statements, but could not substitute its judgment for that of the Board. In a footnote, the Court referenced Haselwander v. McHugh, noting the case was "strikingly similar." The district court's decision in Haselwander has since been overturned. b. The applicant moved to set aside this Court's judgment in light of Haselwander. And now, he also moved to stay the proceedings and remand the matter to the Board. Remanding to the Board was proper in this case because it was unclear on what basis the Board denied the applicant's request. This Court was hamstrung by the lack of clarity and could not properly rule on the motion to set aside judgment without further clarification. c. Thus, on remand the Board should clarify whether it found (a) that the applicant did not provide sufficient reliable evidence that he sustained a wound in combat, or (b) that the Board could not award him the Purple Heart because there is no contemporaneous medical record, irrespective of any corroborating evidence submitted by the applicant. 4. The Court provides a motion order to remand the applicant's case to the ABCMR and a copy of the applicant's amended complaint. CONSIDERATION OF EVIDENCE: 1. The applicant's military records show he enlisted in the Regular Army on 16 January 1967 and he held military occupation specialty 11B (light weapons infantryman). 2. He served in Vietnam from 16 July 1967 through 12 July 1968, during two campaigns. He was assigned to Company B, 2nd Battalion (Airborne), 327th Infantry Brigade, 101st Airborne Division. 3. Headquarters, 101st Airborne Division, issued the following orders pertaining to the applicant: * General Orders (GO) Number 137, dated 26 January 1968, awarding him the Bronze Star Medal with "V" Device for heroism in connection with military operations against a hostile force in Vietnam on 5 October 1967 * GO Number 7010, dated 10 October 1968, awarding him the Army Commendation Medal with "V" Device for heroism in Vietnam on 11 November 1967 4. He was honorably released from active duty on 23 December 1969 and he was transferred to the U.S. Army Reserve Control Group. He was credited with completing 2 years, 11 months, and 8 days of total active service. His DD Form 214 lists the: * National Defense Service Medal * Vietnam Service Medal * Parachutist Badge * Combat Infantryman Badge * Bronze Star Medal 2nd Award and with "V" Device * Army Commendation Medal 5. His DA Form 20 (Enlisted Qualification Record) shows in: * Item 40 (Wounds) no entry to show he was wounded in action while serving in Vietnam * Item 41 (Awards and Decorations) no entry for the Purple Heart 6. His name is not listed on the Vietnam casualty roster. 7. 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 Military Awards Branch of the U.S. Army Human Resources Command, again failed to reveal any orders for award of the Purple Heart pertaining to the applicant. 8. On 22 June 2004, he was issued a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) correcting his DD Form 214 by deleting the Bronze Star Medal and the Bronze Star Medal with "V" Device and adding the Bronze Star Medal (2nd Award) with "V" Device and the Jumpmaster Course. 9. On 16 July 2009, in ABCMR Docket Number AR20090004640, the ABCMR responded to the applicant's request for award of the Purple Heart for a wound received in action on 5 May 1968. The applicant provided as evidence a self- authored letter in which he stated his perspective relating to his being wounded action and a notarized statement from Mr. Pxxxxx, an individual who claimed that he was the medic who treated the applicant. The individual stated that he provided the applicant with medical treatment; however, he did not make the treatment a matter of record because he was out of forms. From that review the ABCMR determined the following: a. The medical treatment was not made a matter of official record, the applicant's name did not appear on the Vietnam Casualty Listing nor did it appear on the U.S. National Achieves and Records Administration's Casualty Information System. In addition, no entries were made on the applicant's service personnel records to show he was wounded as a result of hostile action and consequently no orders were published awarding him the Purple Heart. b. While the statement in support of the applicant's request was notarized to add a degree of credibility, verifying information was not provided to show that the individual was a medic assigned to the 2nd Platoon, Company, C, 327th Infantry, and if so, that he was on duty in the field on that date and that he did provide the medical treatment which was described in his statement of support. c. Based on the lack of corroborating documentary evidence in this case, the applicant was not entitled to award of the Purple Heart and to have it added to his DD Form 214. 10. On 25 May 2010, in ABCMR Docket Number AR20090018905, the ABCMR responded to the applicant's request for reconsideration of the Board's denial of his previous request for award of the Purple Heart. As new evidence, the applicant provided a statement verifying a witness in this case was a medic as indicated in the previous proceedings when he indicated he was wounded in action on 5 May 1968 when a tree trunk hit his left shoulder. In a sworn statement, the individual stated: a. He was reassigned from Company C, 2nd Battalion, 327th Infantry to HHC, 2nd Battalion, 327th Infantry, effective 26 April 1968 as a medic. He treated the applicant after he was allegedly wounded in action on 5 May 1968. He also stated that in his "combat medic opinion" a shrapnel from one of the mortar rounds had struck the applicant in his lower left trapezius and bounced off the left scapula leaving about a two or three-inch long gash. He provided the applicant continuing medical treatment for three or four days after he was wounded in action; however, it appears this treatment was not also recorded as required and as evidenced by the non-availability of any treatment records. 11. After a review of the applicant's records and the new evidence, the ABCMR determined the following: a. The records showed the medic witness was reassigned to HHC, 2nd Battalion, 327th Infantry, as a medic prior to the alleged injury of the applicant. Even if the medic was assigned to the applicant's unit on the date of alleged injury, the fact remains that there was insufficient evidence to collaborate that the medic was on duty in the field on that date and that he provided the medical treatment. b. The applicant's name did not appear on the Vietnam Casualty Roster. There were no entries in his service personnel records to show he was wounded as a result of hostile action, treated by medical personnel for such a wound, or that medical treatment of such a wound was made a matter of official record. Consequently no orders were published awarding him the Purple Heart. c. Based on the lack of corroborating documentary evidence in this case, the applicant was not entitled to award of the Purple Heart and to have it added to his DD Form 214. d. The ABCMR concluded that GO awarded his unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation during his period of service in Vietnam. The ABCMR recommended correction of his DD Form 214 ending on 23 December 1969 to show these unit awards. 12. On 1 September 2010, he was issued a corrected DD Form 214 listing the Republic of Vietnam Gallantry Cross with Palm Unit Citation and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation. 13. On 18 January 2011, in ABCMR Docket Number AR20100021531, the ABCMR advised the applicant his request for reconsideration was considered by the Board on 25 May 2010. That decision was the final administrative action and no further action was contemplated by the ABCMR since he was not eligible for further reconsideration by this Board. He had the option to seek relief in a court of appropriate jurisdiction. 14. On 17 May 2012, in ABCMR Docket Number AR20130003705, the ABCMR responded to a remand action, dated 17 February 2012, from the U.S. District Court, Northern District of Florida, Pensacola Division. The applicant provided copies of his ABCMR Docket Numbers 20090004640 and AR20090018905, the documents considered in the aforementioned Proceedings, including self- authored statements and 8 statements from individuals who served with him. 15. After evaluating all the evidence submitted by the applicant, along with the allegations set forth in his complaint, the ABCMR determined the following: a. Placement on a casualty roster did not confer entitlement to the Purple Heart. Generally, casualty rosters, including the Vietnam casualty roster, listed names of individuals who were injured by hostile action and those who were otherwise injured. These rosters normally used codes to identify those injured by hostile action and those injured in incidents not involving hostile action. b. The fact that a name on the Vietnam casualty roster was coded as injured by hostile action was regularly used as evidence that the requirements of Executive Order (EO) Number 11016 and the regulation were met, i.e., that the individual was wounded, that the wound required treatment by a medical officer, and that the treatment was made a matter of official record. It was also understood that the absence of a name on the roster was not, in itself, evidence that an individual was not wounded and not entitled to the Purple Heart. c. Under wartime conditions, wounds requiring treatment by a medical officer would not always receive such treatment, and, even if a Soldier requiring such treatment received it, there would be cases where the treatment was not made a matter of official record. In such cases, other sources, including credible statements from colleagues, could be useful in establishing the circumstances in which a Soldier was wounded. When used for the purpose of determining entitlement to the Purple Heart, statements should corroborate or explain information in the official military personnel file (OMPF) or other official records that did not, on its own, adequately establish the circumstances under which a Soldier was wounded or that the wound required treatment by a medical officer. d. In this case, neither the applicant's OMPF nor other official records showed he was wounded. There was no official record of a wound to corroborate. As a result, there was no way to assess the credibility of these statements with regard to the alleged wound. e. No one claimed to have witnessed the applicant receiving the alleged wound. It appears the applicant was the sole source of any knowledge of the specific circumstances under which he incurred the alleged wound. f. There are three basic criteria for award of the Purple Heart: (1) The wound must have been incurred while in action against an enemy or as a result of hostile action; (2) It must have required treatment by a medical officer; and (3) Medical treatment must have been made a matter of official record. g. There was no official documentation corroborating his statement that, after returning to his unit on 5 May 1968, a mortar round hit behind him causing "a tree trunk" to strike him on the left shoulder. Further, there was no official documentation corroborating Mr. Mxxx Pxxxxx's statement that he remembers treating a 2 to 3 inch long gash that he believed was caused by shrapnel. h. Maintaining the integrity of the military awards system requires that claims to awards, including the Purple Heart, be corroborated by the official record. Without such a requirement, simply claiming to have earned an award would confer entitlement, and the Purple Heart and other military awards would quickly lose all meaning. i. Accordingly, in the case of the Purple Heart, the criteria for the award required that medical treatment received for a wound incurred in action against an enemy be made a matter of official record. It was understood that locating evidence to establish that the criteria were met could be difficult after several decades have passed; however, regardless of the passage of time, requiring such evidence was neither arbitrary nor capricious. j. The decision to award the Purple Heart must be based on a determination of whether or not the evidence established that the criteria of EO Number 11016 and regulation were met. In this case, with regard to the alleged wound, the official record did not corroborate the applicant's claim or the statements provided by individuals claiming to have served with him. Therefore, it was not in the interest of justice to award him the Purple Heart. 16. On 5 May 2015, in ABCMR Docket Number AR20150003755, the case of Haselwander was remanded to the ABCMR for reconsideration of the applicant's request for correction of his medical records and award of the Purple Heart. In his previous case, ABCMR Docket Number AR20090009077, the applicant provided copies of the following: * electronic mail communications and photographs * DA Form 1594 (Daily Staff Journal or Duty officer's Log * U.S. Army Vietnam form 382 (Monthly Report of Scout Dog Operations) * three letters of support 17. The applicant (Haselwander) filed a complaint in the District Court on 13 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 (hereafter referred to as the Court of Appeals). 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. 18. The opinion of the Court of Appeals, as filed by the Senior Circuit Judge, was summarized as follows: a. The applicant stated that undisputed evidence in the records showed 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 the evidence, the applicant claimed that his medical records should be corrected and he should be awarded the Purple Heart. b. The Secretary (of the Army) argued in his brief on appeal that because the applicant never requested that the Board amend his medical records, it was improper for him to raise that issue upon appeal. The Court of Appeals disagreed, opining that the error and injustice in the applicant's records that 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. c. Even if specific arguments were not expressly made to an agency, they could still be raised on appeal if the agency reasonably should have understood the full extent of the applicant's argument. It was sufficient if the issue was necessarily implicated in the agency proceedings. Additionally, the Secretary's argument was never raised with the District Court, thus was forfeited. d. There was no doubt that the applicant needed a correction to his medical records in order to be eligible for the Purple Heart and there was no doubt he knew that 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. In the materials accompanying his application and his petition for reconsideration, the applicant gave the Board the information it needed in order to correct his medical records, namely 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. e. 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: (1) The letters of support submitted with this request for reconsideration clearly state that the applicant was wounded in action. (2) The photographs that reportedly show the applicant's wounds bandaged are insufficient by themselves as a basis for award of the Purple Heart. There is no available medical record to corroborate the photographs. f. The applicant never claimed that the photographs of a bandaged Soldier alone warrant his award of the Purple Heart and he did not submit those photographs alone, but in conjunction with other corroborating evidence. g. It made no sense for the Board to say his application was denied because he had no medical records, when the very error stated in his application to the Board was that his Army records lack the medical records of his injury and treatment on 6 June 1969. h. The Board did not suggest and the Secretary did not contend on appeal that they lack the authority to correct the applicant's medical records. The expansive statutory definition of "military record" established that the Board clearly had the authority to correct his medical records if they contain an error or injustice. i. It was even more noteworthy that the Secretary did not contend that the evidence furnished by the applicant was insufficient to justify a correction of his medical records and subsequently award him the Purple Heart. j. The Board's decision lacked reasons that a court could measure against the arbitrary or capricious standard of the Administrative Procedure Act, thus the court owed no deference to the Board's purported expertise on the matter. k. The applicant proffered undisputed, credible evidence to support his application before the Board and in response, the Board rendered a decision that was unworthy of any deference. l. It was concluded the Board failed to fulfill its statutory mandate to correct an injustice clearly presented in the records before it and the denial of the applicant's request was arbitrary and capricious. 19. In ABCMR Docket Number AR20150003755, the ABCMR determined the following: a. 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 entitling him to award of the Purple Heart. b. Unit reports supplied by the applicant corroborate that an enemy-triggered explosion occurred on 6 June 1969 resulting in two unnamed Soldiers from the unit requiring medical treatment due to injury. c. 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. d. The two witness statements provided lend additional credence to the applicant's contention he was one of the two unnamed Soldiers listed in the unit reports who were injured in the 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 the applicant's 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. e. 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. f. Therefore, as a matter of equity, the applicant's records should be corrected to reflect he was wounded as a result of hostile action and received medical treatment for those wounds. g. Unfortunately, the applicant's available OMPF contains 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, it would be appropriate to amend item 40 of the applicant's DA Form 20 to reflect he received wounds in action on 6 June 1969 for which he received medical treatment. h. Based on the foregoing information, there is sufficient evidence to grant the requested relief and award the applicant the Purple Heart. 20. The Board recommended the applicant's records be corrected by: * amending item 40 of his DA Form 20 to reflect treatment for wounds received in action in the Republic of Vietnam on 6 June 1969 * awarding him the Purple Heart for wounds received in action in the Republic of Vietnam on 6 June 1969 * adding award of the Purple Heart to his DD Form 214 21. Army Regulation 600-8-22 (Military Award) states: a. The Purple Heart is awarded for a wound sustained as a result of enemy 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. b. When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury. The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award. c. An example of enemy-related injuries which clearly justify award of the Purple Heart is an injury caused by enemy bullet, shrapnel, or other projectile created by enemy action. d. Any member of the Army who believes that they are eligible for the Purple Heart but, through unusual circumstances no award was made, must submit an application and include documentation pertaining to the wound and inflicting force. Statements from at least two individuals who were personally present, observed the incident, and have direct knowledge of the incident. Alternatively, other official documentation may be used to corroborate the narrative: Casualty Report and Standard Form (SF) 600 (Medical Record – Chronological Record of Medical Care). e. Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury, or death must have been the result of enemy action, the wound or injury must have required treatment, not merely examination, by a medical officer. Additionally, treatment of the wound will be documented in the Service member's medical and/or health record. DISCUSSION AND CONCLUSIONS: 1. The Court has requested that the ABCMR clarify whether it found the applicant did not provide sufficient reliable evidence that he sustained a wound in combat or that the Board could not award him the Purple Heart because there is no contemporaneous medical record, irrespective of any corroborating evidence submitted by the applicant. 2. The available evidence submitted by the applicant shows members of his unit confirmed his contentions that he was wounded by mortar fragments while trying to engage in a firefight while serving in Vietnam and he received treatment from the unit's medic. Statements from the medic, Mr. Pxxxxx, further confirm that he treated the applicant for his wounds; however, he was unable to create a medical record substantiating the applicant's wounds because he had run short of the necessary forms. 3. Under wartime conditions, wounds requiring treatment by a medical officer will not always receive such treatment, and, even if a Soldier requiring such treatment receives it, there will be cases where the treatment is not made a matter of official record. In such cases, other sources, including credible statements from colleagues, may be useful in establishing the circumstances in which a Soldier was wounded. Ideally, when used for the purpose of determining entitlement to the Purple Heart, statements should corroborate or explain information in the OMPF or other official records that does not, on its own, adequately establish the circumstances under which a Soldier was wounded or that the wound required treatment by a medical officer. In the absence of any official record of an injury, the Board may still determine that a preponderance of the evidence supports awarding the Purple Heart. 4. In this case, neither the applicant's OMPF nor other official records show he was wounded as a result of enemy action during his period of service in Vietnam. However, the applicant's submissions lend credibility to his claim that he sustained an injury as a result of enemy action during his period of service in Vietnam. Notwithstanding previous decisions, the preponderance of the evidence in this case supports awarding the Purple Heart to the applicant for a wound received in action on 5 May 1968. BOARD VOTE: ___x____ ____x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * awarding him the Purple Heart for wounds received in action in Vietnam on 5 May 1968 * adding to his DD Form 214 the Purple Heart ___________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) AR20150014782 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150014782 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1