ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 December 2019 DOCKET NUMBER: AR20170007824 COUNSEL FOR THE APPLICANT REQUESTS: * reconsideration of his previous request for correction of his medical record to shows he sustained injuries in combat in Vietnam, and subsequent received treatment by a medical officer * to show he was authorized and awarded the Purple Heart (PH) for those injuries * A personal appearance before the Board COUNSEL ON BEHALF OF THE APPLICANT PROVIDES SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 15 March 2017 and continuation * Letter from J.D. * Affidavit of DH; Affidavit of CI; Affidavit of AM; Affidavit of BM, Affidavit of RR, and Affidavit of C.O. * Compensation and Pension Examination * General Orders Number 4705 (Bronze Star Medal), dated 16 August 1967 * 1st Calvary Division (1 CAV) Combat Operations After Action Report (AAR) * 2nd Battalion, 12th Cavalry (2/12) Calvary Combat Operations AAR * Obituary of PC * DD Form 149, dated 20 June 1996 and Allied Documents * Letter from Senator PT * Awards and Decorations Branch Response to Senator P.T. * Department of Veterans Affairs Rating Decision * Army Review Boards Agency Letter of Response to Senator P.T. * 15th Medical Battalion Army Medical Service Activities Report * DA Form 1594 (Daily Staff Journal or Duty Officer’s Log), 1 CAV * Index of Exhibits FACTS: 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 on 23 April 1998. 2. The applicant provided new evidence and arguments not previously considered by the Board that warrants consideration at this time. 3. The applicant’s counsel states he requests reconsideration of the ABCMR Docket Number. This application introduces new evidence not previously considered by the Board, and thus, reconsideration is required pursuant to 10 U.S.C. § 1552(a)(3)(D). He believes the law and equity supports reconsideration for a Vietnam veteran wounded in action, and who has waited more than 50 years to be awarded the PH. Given the length of time since his injury and in light of serious health issues he is currently facing, he requests that his client’s case be expedited. Counsel states: a. The applicant was injured on 10 August 1966, while serving as an infantryman in the U.S. Army 1st Air Cavalry Division during the Vietnam War. He was previously denied this award multiple times but he now includes materials not previously presented or considered by the Board, including (1) affidavits from multiple witnesses to his injury and air evacuation from the unit to obtain medical care, (2) a recent Department of Veterans Affairs (VA) medical evaluation showing he still bears the scar from his wound and concluding the puncture wound likely was caused by a punji stick, (3) a VA Rating Decision showing his service connecting scar is directly related to his military service, and (4) unit records that corroborate his and the witnesses' accounts. b. In August 1966, elements of the 1st Calvary (CAV), including Alpha Company, 2nd Battalion, 12th Cavalry (A/2/12), executed Operation Paul Revere II, a search-and- destroy mission in the la Drang Valley of Darlac Province, Vietnam. The Division and Battalion Combat After Action Reports describe an engagement between A/2/12 and a company-sized element of the North Vietnamese Army (NVA) on 10 August 1966. After an intense firefight that required close air support to prevent the NVA from encircling A/2/12, the NVA unit broke contact and fled. A/2/12 pursued. As he led the pursuit of the NVA, he stepped on a concealed punji stake trap that punctured his lower left leg. The punji stake trap was a common weapon consisting of a sharpened bamboo stick designed to stab its victims, often laced with feces or poison to cause infection. Mr. C.I. witnessed the applicant remove the stake from his leg and then continue the pursuit of the NVA. Mr. A.M. saw the wound later that day and confirmed its nature and appearance at the time: "[l]t was obvious that it was a punji stick wound. There was a hole punched into [applicant's] left leg between the ankle and the knee that looked just like other punji stick wounds [he] had seen before." c. The applicant initially treated the wound himself and continued with the pursuit. When he awoke the next day, his leg was swollen and infected. Mr. C.I. described it as "purple and red and filled with pus." Mr. A.M. also thought that the leg "looked much worse the next day" and noted that the applicant was having difficulty walking due to the swelling. The company medic, Mr. P.C. determined that the wound was so serious that the applicant should be evacuated by helicopter to a medical facility for further treatment. Because the leg was swollen and painful, the applicant had difficulty walking. Mr. A.M. put his arm around the applicant to help him walk to the helicopter that flew him to the clearing station. There, the applicant received immunoglobulin shots to fight the developing infection in his leg. He was away from his unit for several days and under the care of a medical officer. Mr. C.I. thought the wound was so bad that the applicant would not return to the unit. However, the applicant did in fact return to his platoon after a few days. When he returned to the company, he showed his wounds to the members of the platoon and described receiving injections to combat the developing infection. Mr. D.H. saw that it "was in very bad shape." Mr. R.R. described that the wound was still swollen, with "deep cuts in his flesh.” d. Counsel discusses the previous denials and makes an argument that: (1) The applicant’s previous request for reconsideration was improper because the new evidence that was presented was not reviewed. (2) The new evidence presented here satisfies the requirements for award of the PH in that the applicant was wounded in an engagement with the enemy and that he received treatment from a medical officer. (3) The applicant’s Army medical records erroneously omit the record of the applicant’s treatment. (4) The applicant’s platoon mates, recipients of the PH, support the applicant’s request and submitted affidavits supporting these claims. e. Affidavit of D.H. states he was assigned to 2nd Platoon, A/2/12, 1 CAV in Vietnam. On 10 August 1966, their unit was engaged in a firefight that left several Soldiers dead and many more wounded. He was on kitchen duty that day and was not involved in the firefight. He learned that the applicant was among the injured and specifically remember hearing that the applicant had stepped on a punji stick and was badly injured. He did not see him until approximately a week later when he returned from the field hospital to which he was medically evacuated for treatment. His left leg, even after being treated, was in very bad shape. He saw the applicant’s wound was still open and looked a bit festered. He told him that while he was at the hospital, they gave him shots to fight the infection. He knows how serious punji stick wounds can be because he was injured by a punji stick trap several months later, on 11 October 1966. He has a scar that looks just like the applicant's. Their unit did not always properly award the PH. Like the applicant, he was injured by a punji stick and was not awarded his PH for about 37 years. Although, his medical records clearly demonstrated he had received medical care for his punji stick wound and he still needed the assistance of a U.S. Senator to get the records corrected. f. Affidavit of C.I. states in May 1966, he deployed to Vietnam with A/2/12, 1st CAV. He was assigned to the applicant’s platoon and served as the first gunner in the “Gun Squad.'' On 10 August 1966, A Company was attacked by the NVA while on patrol near the Cambodian. After the initial firefight, they pursued the NVA into the jungle. At that time, he was behind the applicant. During the attack, he saw the applicant get stabbed in the left leg by a concealed punji stick that was emplaced in the ground. He watched as the applicant removed the punji stick from his left leg. Although he was injured and bleeding, he continued with the mission and pursued the NVA in the jungle. He was present when the A Company medic, P.C, expressed concern about his injury and his delay in seeking treatment because of the high risk of infection. Once the wound was examined by the company's medics, the applicant was airlifted to a medical facility to receive treatment. He rejoined the platoon approximately 3 or 4 days later. The applicant informed him that the doctors had given him a gamma globulin shot to clear up the infection. g. Affidavit of A.M. states in 1966, he deployed to Vietnam with A/2/12, 1st CAV. The applicant was assigned to the same platoon, and they served and fought together in Vietnam. On 10 August 1966, A Company was patrolling an area near the Cambodian border in support of Operation Paul Revere II. They made contact with the NVA, which turned into an intense firefight. Air support forced the NVA to retreat towards the Cambodian border and they followed in pursuit. During this pursuit, the applicant was seriously wounded by a punji stick trap. A couple of days following the firefight, he noticed that he had not been with the platoon for a few days. Other members of the platoon explained that his injury required treatment at a medical facility. He returned a few days later and they had conversations about the treatment he received while at the base camp in An Khe. Although he did not witness the injury, he knew at the time that he had been injured and taken to the hospital for medical care. He has also seen the punji scar in the applicant's left leg from the injury he sustained in Vietnam. h. Affidavit of B.M. states he deployed to Vietnam in July 1966, where he was assigned to A/2/12, 1st CAV. He and the applicant were both members of 2nd Platoon. On 10 August 1966, they were on mission during Operation Paul Revere 11 when they confronted a NVA ambush. After more than an hour, the shooting died down and they chased the NVA into the tree line. During the chase, the applicant stepped on a punji stick trap and suffered a puncture wound to his left leg. His squad was some distance away so he did not see it happen, but he did see the injury that same day and it was obvious that it was punji stick wound. He was also present when their company medic treated the wound later that day. Despite that initial treatment, the applicant’s leg looked much worse the next day. It had become swollen and infected, and he was having trouble walking. Because he needed more advanced care, he was sent to a hospital at the base camp in An Khe. He put his arm around him for support and helped him walk to the helicopter that transported him to that hospital. He does not remember exactly how long he was gone, but it was several days. When he returned, his leg looked much better. It was bandaged, but he still had a limp. i. Affidavit of R.R. states he deployed to Vietnam with A/2/12, 1st CAV. He first met the applicant in June 1966 in Vietnam. They were assigned to the same platoon in A/2/12 and the applicant served as a mentor to him. He would later become his squad leader. On 10 August 1966, A/2/12 was on patrol when they were ambushed by the NVA. They pursued the NVA as they retreated toward the Cambodian border. He did not witness the applicant get injured, but he did notice that he was not with the unit after that battle. When he inquired as to his whereabouts, other members of his unit informed him that he had been seriously wounded by a punji stick trap during the pursuit of the NVA. He spoke with the applicant about a week later when he turned to his unit. The applicant explained to him that he had to be treated at a hospital because of the nature of his injury and risk of infection. During that conversation, the applicant showed him the wound on his left leg, which was swollen and had deep cuts in his flesh. j. A Compensation and Pension Examination, which shows he still bears the scar from his wound and concluding the puncture wound likely was caused by a punji stick. k. Affidavit of C.O. certifying he researched and oversaw the research into unit records from the Vietnam War at the. l. General Orders (GO) Number dated 16 August 1967, which awarded him the BSM for meritorious service from January 1966 to January 1967. m. 1st CAV Combat Operations AAR, which indicates a shift in operational control of A/2/12 during the period in question. The applicant stipulates this may be the reason for the failure to document his combat injury. His name does not appear anywhere in the AAR. n. 2/12th Calvary Combat Operations AAR, which state the NVA fled the conflict and A/2/12 pursued the enemy, mirroring the claim made by the applicant. His name does not appear anywhere on this AAR. o. Obituary of P.C., who was the company medic during the time of the applicant’s injury, and made the determination to evacuate him by helicopter to a medical facility for further treatment. p. DD Form 149, dated 20 June 1996 and allied documents, which denied his application based on surpassing the allotted time in which to file a claim. q. A letter from Senator P.T. showing where he has sought assistance to resolve his claim. The Awards and Decorations Branch responded to Senator P.T. stating they could not act upon his request because it was previously denied by the ABCMR. r. The VA Rating Decision, which states, “Service connection for residuals, pungi stick injury, left lower extremity, to include scar is granted with an evaluation of 0 percent effective April 18, 2018….Although your service treatment records do not contain complaints, treatment, or a diagnosis for this condition, the VA examiner opined this scar was likely incurred while in Vietnam, as supported by two buddy statements, from fellow Soldiers who service with you in Vietnam.” s. A letter from the Army Review Boards Agency sent to Senator P.T., dated 19 December 2014, regarding the status of the applicant’s case ABCMR Docket Number, in which ARBA informed the Senator’s office that the applicant’s request was denied and was provided with a copy of the record of proceedings explaining what the Board considered and the reason for denying his application. t. 15th Medical Battalion Army Medical Service Activities Report, which the applicant believes is where he received medical treatment. This document does not list any names of Soldiers who were treated there. u. DA Form 1594 (Daily Staff Journal or Duty Officer’s Log), from the Headquarters, 1st Air Calvary Division, which covered the period from 0001 to 2400 on 10 August 1966, annotated the engagement time as well as enemy contact. The applicant’s name is not mentioned anywhere on this journal/log, nor does it state that anyone was injured by a pungi stick; however, it does state that multiple Soldiers were wounded in action (WIA), 3. v. An Index of Exhibits which details the listing of attachments included with the packet for reconsideration. 4. Review of the applicant’s service record shows: a. He was inducted on 9 September 1965 into the Army of the United States. b. DA Form 20 (Enlisted Qualification Record) shows in: * item 31 (Foreign Service): “27 Jan 66 through 26 January 67 – USARPAC Vietnam” – 12 months * item 38 (Record of Assignments): he was stationed in the U.S. Army Pacific (USARPAC), Vietnam from 27 January 1966 through 26 January 1967, and was assigned to Company A, 2nd Battalion, 12th Calvary, 1st Calvary Division (Air Mobile) for the entire time * item 40 (Wounds): does not reflect any entries * item 41 (Awards and Decorations): he was awarded the following awards -: o Vietnam Service Medal (VSM) o National Defense Service Medal (NDSM) o Combat Infantry Badge (CIB) o Air Medal (AM) o Overseas Service Bar o Vietnam Campaign Medal (VCM) o Marksman Marksmanship Qualification Badge with Rifle Bar (M-14) c. On 20 July 1967, the applicant received an expiration of term of service (ETS) examination and recorded on Standard Form (SF) 89 (Report of Medical History). It shows in: * item 17 (Statement of Examinee’s Present Health in Own Words): “in good health to his knowledge” * item 33 (Have You Had Any Illness or Injury Other Than Those Already Noted): the applicant listed “Malaria-Vietnam” * item 34 (Have You Consulted or Been Treated by Clinics, Physicians, Healers or Other Practitioners Within the Past 5 Years): “No” d. General Orders 4705, issued by Headquarters, 1st Cavalry Division (Air Mobile), dated 16 August 1967, shows the applicant was awarded the BSM for meritorious service for the period January 1966 to January 1967. e. On 8 September 1967, he was honorably released from active duty. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 2 years of net service this period. This document also shows he was awarded or authorized the following awards: * VSM with two bronze service stars * NDSM * CIB * AM * VCM * Marksman Marksmanship Qualification Badge with Rifle Bar f. In ABCMR Docket Number AC98-06508, the applicant submitted a request to show he was entitled to the award of the PH. On 29 April 1998, the applicant’s request for the PH was denied. The Board determined his application was not submitted within the time required. In addition, the applicant did not present and the record did not contain sufficient justification to conclude that it would be in the interest of justice to grant the relieved requested or to excuse the failure to file within the time prescribed by law. g. On 25 May 2012, the applicant submitted a request for reconsideration in ABMCR Docket Number AR20120011356; however, on 25 July 2012, his request was returned without further action. The ABCMR reviewed his request for reconsideration and determined that he did not appeal his decision within one-year period of the ABCMR's original decision. The letter states the ABCMR would not consider any further requests for reconsideration of this matter, but he had the option to seek relief in a court of appropriate jurisdiction. h. On 8 March 2013, the applicant submitted another request for reconsideration in ABCMR Docket Number AR20130004787. i. On 10 April 2013, the ABCMR responded to the applicant informing him that this records were requested from the National Archives and Records Administration (NARA). The NARA informed ABCMR that his records were on loan to another agency. Therefore, the ABCMR could not make a fair, impartial, and equitable determination of facts without his official records, and the ABCMR closed his case without further action. j. On 14 May 2015, the applicant submitted another reconsideration request to ABCMR in Docket Number AR20150009054, requesting to have his BSM listed on his DD Form 214. k. On 8 July 2015, in response to his ABMCR Docket Number AR20150009054, the applicant’s case was administratively corrected to show he was authorized and awarded the BSM. l. On 9 July 2015, the applicant was issued a DD Form 215 (Correction to DD Form 214), to show he was authorized and awarded the BSM. 5. On 15 March 2017, the applicant, through counsel has submitted another request for reconsideration to correct his medical records to show he was wounded in combat action in Vietnam and to show he was authorized and awarded the PH. 6. There is no evidence found in the applicant's military records indicating he was injured or wounded as a result of hostile action. a. His medical records, which would have listed any injuries and treatment, are not available for review with this case. The available medical records consist of a separation physical wherein he listed having had malaria in Vietnam but was “in good health to his knowledge.” He further answered in the negative when asked if he had been consulted or been treated by clinics, physicians, healers, or other practitioners within the past 5 years. b. His personnel records do not contain an official Army message or a Western Union telegram notifying his next of kin of an injury or wound sustained in action. This was the proper notification procedure for injuries at the time. c. His name is not shown on The Adjutant General's Office Casualty Division Casualty Reference Name Listing, a list of Vietnam era casualties commonly used to verify entitlement to award of the PH. d. A review of the Awards and Decorations Computer Assisted Retrieval System maintained by the U.S. Army Human Resources Command, an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders for the PH pertaining to the applicant. 7. Counsel for the applicant submitted six affidavits from Soldiers, on behalf of the applicant, who state they were in the applicant’s unit and remember his injury, with the applicant at the time of injury, or saw the applicant at some point after he was injured. 8. Army Regulation 600-8-22, states the criteria for an award of 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 personnel * the medical treatment must have been made a matter of official record 9. Army Regulation 15-185 states: a. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. b. 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. 10. By regulation, the information entered on the medical records by the medical provider or treating physician reflects the conditions as they existed at the time they occurred or shortly thereafter. 11. By regulation, only documents prepared by authorized U.S. Army Medical Department (AMEDD) personnel will be filed in Army medical records. This restriction does not prohibit the use of other documents created by attending physicians and dentists outside AMEDD (Navy, Air Force, civilian, and so forth) or the filing of other documents as summaries or brief extracts. If such documents are filed, their source and the physician or dentist under whom they were prepared must be identified. 6. By law and regulation, any member of the armed force who has been wounded in action against an enemy of the United States, a wound for which the award is made must have required treatment by a medical officer, shall be awarded the PH. 12. Army Regulation 600-200, a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization should be entered into item 40 of the DA Form 20. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After review of the applicant and all evidence, the Board found the relief is not warranted. The applicant’s contentions were carefully considered. The Board noted that the applicant’s DA Form 20 nor his SF 89 shows any documentation that he was wounded while in service. The SF 89 is a snapshot of a Soldier's chronological health record with data entered as it was at the time the form was produced. The Board noted that he only listed his condition of malaria while in Vietnam. Furthermore, the Board determined that although the applicant provided affidavits to support his request, there was insufficient evidence to amend the previous Board’s decision. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number on 23 April 1998. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 40-66 (Medical Record Administration and Healthcare Documentation), currently in effect, prescribes policies for preparing and using medical reports and records for Soldiers receiving medical treatment or evaluation in an Army military treatment facility. a. Chapter 3 (Preparation of Medical Records) states that unless authorized by this regulation, only documents prepared by authorized U.S. Army Medical Department (AMEDD) personnel will be filed in Army medical records. This restriction does not prohibit the use of other documents created by attending physicians and dentists outside AMEDD (Navy, Air Force, civilian, and so forth) or the filing of other documents as summaries or brief extracts. If such documents are filed, their source and the physician or dentist under whom they were prepared must be identified. b. Medical record entries will be made in all inpatient, outpatient, service treatment, dental, Army Substance Abuse Program, and occupational health records by the healthcare provider who observes, treats, or cares for the patient at the time of observation, treatment or care. No healthcare practitioner is permitted to complete the documentation for a medical record on a patient unfamiliar to him or her. In unusual extenuating circumstances (for example, death of a provider), local policy will ensure that all means have been exhausted to complete the record. 3. Executive (Authorizing Award of the PH), in effect at the time, prescribes the criteria for award of the PH. a. Paragraph 1 states award of the PH to any member of an armed force who has been wounded: * in any action against an enemy of the United States * in any action with an opposing armed force of a foreign country in which the armed forces of the United States are or have been engaged * while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent part * as a result of an act of any such enemy or opposing armed force * as the result of an act of any hostile foreign force b. Paragraph 3 states a wound for which the award is made must have required treatment by a medical officer. 4. Army Regulation 672-5-1 (Decorations and Awards), in effect at the time, provided that the PH was awarded to any member of the Armed Forces of the United States who was wounded in action against an armed enemy of the United States or as a direct result of an act of such enemy provided the wound necessitated treatment by a medical officer. For the purpose of considering an award of this decoration, a "wound" is defined as an injury to any part of the body from an outside force or agent sustained in action in the face of the armed enemy or as a result of a hostile act of such enemy. 5. Army Regulation 600-200 (Enlisted Personnel Management System), paragraph 9- 53, in effect at the time, states in item 40 of DA Form 20 to enter a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization. This regulation further states the date wounded or injured should be entered as well. 6. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. 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. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170007824 13 1