IN THE CASE OF: BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160003459 BOARD VOTE: ___x_____ ___x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160003459 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 during his service in Vietnam and adding the Purple Heart to his DD Form 214. ___________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. IN THE CASE OF: BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160003459 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 of his earlier request for award of the Purple Heart (PH). 2. The applicant states his previous request was denied. He is submitting new evidence in the statement of Mr. S. V_ addressing the dates of his injury and treatment provided. He is also submitting medical records authored by his primary care provider substantiating the necessity of the medical treatment provided by Mr. S. V_. 3. The applicant provides: * self-authored statement * statement from Mr. S. V_, dated 8 January 2016 * medical records from his primary care provider 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 AR20140010547 on 19 February 2015. 2. The applicant provides a new argument that warrants consideration by the Board. 3. The applicant enlisted in the Regular Army on 18 July 1968 and held military occupational specialty 11B (Light Weapons Infantryman). On 10 February 1969, he completed basic airborne training and on or about 11 July 1969, he completed Special Forces weapons training. 4. On 28 September 1969, he was transferred to Vietnam where he served with the 5th Special Forces Group until on or about 11 January 1971. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he served in Vietnam through 1 March 1971. 5. On 1 March 1971, he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement). His DD Form 214 shows he completed 2 years, 7 months, and 14 days of active service of which 1 year, 5 months, and 4 days was foreign service. It further shows he was awarded or authorized: * Bronze Star Medal * Vietnam Campaign Medal * Vietnam Service Medal * National Defense Service Medal * Combat Infantryman Badge * Parachutist Badge * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) * two overseas service bars 6. Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) is void of entries indicating that he was wounded as a result of enemy action. Additionally, his record is void of general orders authorizing or awarding him the PH. Furthermore, his name is not contained on the Vietnam casualty roster. 7. A review of the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the U.S. Army Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal orders awarding him the PH for his period of service in Vietnam. 8. The applicant indicates in a self-authored letter to the Board that: a. On 6 June 2014, he applied for a correction of his military record, requesting award of the PH for an injury sustained while serving in Vietnam. In support of his application he provided a statement of the events and supporting affidavits from Mr. S. V_ (Medical Specialist) and Mr. D. E_, both of whom were assigned to the Loc Ninh in Vietnam with the applicant. He was on his first field operation in October or November 1969 while serving with the U.S. Special Forces. On the fourth day of the operation he came under heavy fire. At some point during the firefight he was blown into a bomb crater, but did not feel injured at the time. Lieutenant B_ sustained a leg injury ro which he applied a field dressing. Upon returning to base he discovered a piece of shrapnel protruding from his chest. He was unable to dislodge the shrapnel and showed it to Sergeant (SGT) V_ and SGT E_. SGT V_, the team medic, directed him to the medical bunker where he removed the shrapnel from his chest and observed him for signs of internal bleeding. At that time he declined submission for the PH. b. On 20 February 2015, he received the opinion of the Board denying his application stating the Board’s reason for denying his application. The Board was apparently unpersuaded by the testimony offered and he filed a request to obtain all of his service records from the National Personnel Record Center. On 29 April 2015, the records center provided the requested records and there were no records originating from A-331 that addressed his injury or treatment. He reviewed his records and contacted SGT V_ and inquired about the availability of his medical record and documentation of his injury and subsequent treatment at Loc Ninh. Mr. V_ stated that he recorded the date and location of the wound in his medical files at Loc Ninh. Mr. V_ provided a statement that is enclosed with his application. Mr. V_'s letter states “[Applicant's] medical file at Loc Ninh (A-331) contained notations of the nature of treatment of the wound. The record included the date and location of the wound and the date and nature of treatment.” He also states Mr. V_ directed attention to his original affidavit dated 14 April 2014, where he specifically noted the existence of medical records at Loc Ninh that were left at the camp. c. Furthermore, the Board cites Army Regulation (AR) 600-8-22 (Military Awards) in its response, stating “substantiating evidence must be provided to verify the wounds were 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.” After reviewing the cited regulation, requiring medical treatment be necessary, he provided his Department of Veterans Affairs (VA) primary care physician, Dr. D. W_, with SGT V_'s affidavit and asked that he comment on the appropriateness of the treatment provided. Dr. W_ opined “removing the shrapnel is certainly appropriate and the description seems plausible.” d. AR 600-8-22, which outlines the criteria for awarding the PH, contains three criteria: * the wound was sustained as a result of hostile action * the wound required medical treatment * the medical treatment was made a matter of record e. In addition to the above regulation, the Board concluded there must be sufficient evidence to show: * when the wound was received * the date of treatment * the medical treatment was made a matter of record 9. Additionally, the applicant states: a. Both the Board and Army regulations require sufficient evidence be met. In cases such as this, the evidence can be produced either in the form of testimony or records. The evidence he produced was in the form of a testimony, in other words, a statement and two third-party affidavits. Both affidavits were given under oath, and the statements were given by three members of the U.S. Special Forces. Certainly the Board is not calling into question the veracity of these three individuals. Moreover, the very regulation the Board is citing allows for the testimony of two third-party witnesses. b. The Board indicated his records were examined and nothing was found to substantiate his claim. He submits that the Board cannot rely on the record, in and of itself, in denying his application. First, the Board noted that it found no record of his wound and submits that the hostile action and subsequent wound occurred while he was assigned to Loc Ninh. However, no record was produced, notwithstanding SGT V_’s incontrovertible statement that a Loc Ninh record was created. Second, the Board looks at a separation examination. He was wounded in October or November 1969 and didn’t separate from service until March 1971. The wound would not have manifested itself 1 year and 4 months after the fact. Finally, his name did not appear on the Vietnam casualty roster. As attested by SGT V_ and substantiated by his statement, he declined an award at the time. This decision might have affected him being listed on the casualty roster. c. There was a record that would have met all evidentiary burdens noted by the Board. Had the records at A-331 been produced as he requested, all the objections raised by the Board would have been addressed. Apparently, however, the records have been lost or destroyed. The records when lost or destroyed were in the care, custody, and control of the U.S. Army. Certainly the Board would not reject his application on the basis of events out of his control when the Army had sole responsibility for the record. d. The Board expresses concerns that the date of injury and the date of treatment haven’t been precisely substantiated. He notes the two affidavits establish a timeframe for both the injury and treatment as October or November 1969. He submits the timeframe given as sufficient, considering the events happened over 45 years ago. In reviewing the Code of Federal Regulations and Army regulations, he cannot find a requirement for such specificity. The Board has not cited an authority for this proposition. Finally, as cited by the Board, that treatment must be made a matter of record. This is what SGT V_ precisely attested to. SGT V_ made notes of treatment in his medical records. The statute does not require the records be produced but rather that evidence be produced substantiating the record was made. Accordingly, he submits the three criteria cited by the Board be deemed to have been met. e. He now would like to address the three criteria of AR 600-8-22. First is the requirement that there be a wound and that the wound be a result of hostile action. The regulation provides award of a PH is justified for a wound caused by shrapnel. His statement and the two accompanying affidavits are evidence that shrapnel was embedded in his chest. He submits that embedded shrapnel constitutes a wound. The evidence further reveals the wound was received during a firefight. He submits that a firefight with 12 to 14 casualties constitutes hostile action. Secondly, the wound must require medical treatment. The shrapnel was stuck in his chest and he was unable to pull it out. SGT V_ observed this and directed him to the medical bunker where he removed the shrapnel and observed him for internal bleeding. His VA primary care physician reviewed SGT V_’s affidavit and opined that the removal of the shrapnel was appropriate. Finally, the treatment must have been made a matter of record. This is the same requirement of the Board and explained in detail above in regard to SGT V_’s incontrovertible evidence that a record was made. 10. On 8 January 2016, Mr. S. V_ provided a sworn statement supporting a previously written statement dated 14 April 2014 in support of awarding the applicant the PH. It stands to clarify the nature and treatment of the wound in which the applicant is using to substantiate his petition. It states in regard to the documentation of medical records “upon my departure the team medical files were left for my replacement, these included the file on the applicant since I departed the team prior to him. I would have no information on how these files were handled by my replacement. The applicant’s medical file located at Loc Ninh (A-331) contained notations of the nature and treatment of his wound. The notations in his file were made by me since I was the attending medic. The record included the date and location the wound was received and also the date and nature of treatment that was performed.” The wound and treatment of it were also discussed in paragraph 6 and 7 of his affidavit dated 14 April 2014. He hopes this clarifies any omissions from his previous affidavit and the applicant can be awarded the PH. 11. A Progress Note printed on 11 September 2015 at the Asheville, NC, VA, where the applicant was seen by his primary care physician notes on the bottom of page 3 and the top of page 4: * shrapnel wound in Vietnam in November 1969 the applicant reports when a rocket propelled grenade blew up in front of him * a signed affidavit provided by the applicant from the medic that treated him in Vietnam * the applicant asked him to opine regarding the necessity and appropriateness of care for removing the shrapnel by the medic * removal of the shrapnel was appropriate and the description seems plausible REFERENCE: 1. AR 600-8-22 in effect at the time, states the PH is awarded for a wound sustained while in action against an 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. Award of the Purple Heart may be made for wounds treated by a medical professional other than a medical officer, provided a medical officer includes a statement in the service member's medical record that the extent of the wounds was such that they would have required treatment by a medical officer if one had been available to treat them. 2. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases on the evidence of record; it is not an investigative body. 2. The criteria for the PH 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. a. When there is a lack of clear evidence of an injury caused by hostile action and subsequent medical treatment, other sources are used to establish entitlement to the PH. Here, the applicant's service records are void of documentary evidence confirming he was wounded or injured as a result of combat. His name is not listed on the Vietnam casualty roster. b. Additionally, his DA Form 20 does not show he was wounded in action. His medical records for the period of service in question are not available for review and there is no conclusive evidence in his service personnel records that shows he was wounded or injured as a result of hostile action or treated for such wounds. c. Mr. S. V_, who states he was the treating combat medic, provides a statement that places him in the same unit and location as the applicant and further provides an additional statement with this submission in support of this reconsideration to corroborate his statement dated 14 April 2014. d. When the official records fail to corroborate an entitlement to this award, the Board may weigh eyewitness statements from those present at the scene and closest to the action (i.e., those who witnessed a member's injury and/or witnessed the cause of the injury as well as the treatment rendered). e. The Board must determine if the eyewitness statements are sufficient evidence to demonstrate the applicant met the criteria for award of the PH. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003459 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003459 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2