ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 March 2019 DOCKET NUMBER: AR20170015011 APPLICANT REQUESTS: in, effect, reconsideration of his previous request for award of the Purple Heart. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Department of Veterans Affairs (VA) Supplemental Statement of the Case, dated 19 January 2000 * VA Form 21-4138, dated 25 May 2017, attachment to DD Form 149, item 5 * VA Form 21-4138, dated 25 May 2017, attachment to DD Form 149, item 8b * Privacy Act Release Form – Representative V____ G____, dated 14 July 2017 * Nexus Statement, Dr. W____ E. S____, dated 14 July 2017 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 in Docket Number AC95-06978, dated 19 February 1997. 2. The applicant states: * he engaged in battle with North Vietnamese Forces and incurred a combat wound on or about late April or early May 1969 * he was assigned as a truck driver, but he was riding shotgun * his unit was engaged by the enemy between Camp Carrol and Khe Sanh, Vietnam, which is approximately 5 miles outside of the Khe Sanh Marine Base * during the attack, he jumped from the truck and landed on the broken windshield of a decommissioned jeep that was laying on the side of a levee * he sustained a 20-centimeter cut on his left buttocks * he was picked up by the Marine Corps ambulance and received first aid treatment with transportation to the Phu Bai Combat Base of the 101st Airborne Division * the Army medical team in Phu Bai performed surgery on his wound * he remained in the Phu Bai Combat Base hospital for 7 days * he was transported back to his unit in Quang Tri, Vietnam * Title 38, U.S. Code, section 1154, "makes it abundantly clear that special consideration attend the cases of combat veterans. These veterans may prove service-connection by 'satisfactory lay or other evidence' even in absence of any official records. In addition, the Secretary 'shall resolve every reasonable doubt in favor of the veteran'" 3. His records show he was assigned to Company C, 75th Support Battalion, 1st Brigade, 5th Infantry Division (Mechanized), Vietnam, as a senior light truck driver from 23 November 1968 through 27 January 1970. 4. His available records contain no documentation of wounds or injuries incurred during his service in Vietnam. 5. Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) contains no entries. 6. He was released from active duty on 27 January 1970. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) does not show award of the Purple Heart. 7. His name is not shown on the Vietnam casualty roster. 8. A review of the Awards and Decorations Computer-Assisted Retrieval Systems, an index of general orders issued during the Vietnam era between 1965 and 1973 and maintained by the U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart for the applicant. 9. Army Board for Correction of Military Records previously denied his request for award of the Purple Heart in Document Number AC95-06978 on 19 February 1997. 10. A letter from the U.S. Army Human Resources Command to his Congressional representative, dated 27 October 2014, stated the Awards and Decorations Branch reviewed historical casualty records from the Vietnam era and could not locate his name among the list of battle casualties. The applicant's entitlement to award of the Purple Heart cannot be verified at this time. 11. The Nexus Statement from Dr. W____ E. S____, dated 14 July 2017, states the applicant's service treatment records and post-service records were not available for review. The 20-centimeter laceration appears to have been caused when his hips were bent, which appears to be consistent with his story that he suffered lacerations as he slid down the levee and his bottom hit a broken windshield. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. One Board member believes the injury was indirectly caused as a result of enemy engagement and should qualify for a Purple Heart. The other two Board members agreed the injury did not meet regulatory guidance for award of the Purple Heart as the applicant was injured accidentally after jumping from the vehicle. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : :x GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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 AC95- 06978, dated 19 February 1997. 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. ADMINISTRATIVE NOTE(S): not applicable. REFERENCES: 1. Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is an entitlement and differs from all other awards. a. The Purple Heart is awarded to members of the Armed Forces of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, have been wounded, were killed, or who have died or may hereafter die of wounds received under any of the following circumstances: (1) in any action against an enemy of the United States; (2) 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; (3) 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 party; (4) as the result of an act of any such enemy of opposing Armed Forces; (5) as the result of an act of any hostile foreign force; (6) after 28 March 1973, as a result of an international terrorist attack against the United States or a foreign nation friendly to the United States, recognized as such an attack by the Secretary of the Army, or jointly by the Secretaries of the separate Armed Services concerned if persons from more than one service are wounded in the attack; (7) after 28 March 1973, as a result of military operations while serving outside the territory of the United States as part of a peacekeeping force; (8) service members who are killed or wounded in action by friendly fire; (9) a former prisoner of war who was wounded before 25 April 1962 while held as a prisoner of war (or while being taken captive); or (10) service members killed or wounded in attacks by foreign terrorist organizations. b. A wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions listed below. A physical lesion is not required. However, the wound for which the award is made 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. 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. c. The key issue commanders must take into consideration when contemplating an award of this decoration 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. d. 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 trap or mine * injury caused by enemy-released chemical, biological, or nuclear agent * injury caused by vehicle or aircraft accident resulting from enemy fire * concussion injuries caused as a result of enemy-generated explosions * mild traumatic brain injury or concussion severe enough to cause either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the concussive incident e. Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: * frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951) * trench foot or immersion foot * 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 disorder * airborne (for example, parachute/jump) injuries not caused by enemy action * hearing loss and tinnitus (for example, ringing in the ears) * mild traumatic brain injury or concussions that do not either result in loss of consciousness or restriction from full duty for a period greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function * abrasions and lacerations (unless of a severity to be incapacitating) * bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer) * soft tissue injuries (for example, ligament, tendon, or muscle strains, sprains, and so forth) first degree burns. 2. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, stated a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization, would be entered in item 40 (Wounds) of the DA Form 20 (Enlisted Qualification Record). This regulation further stated the date the wound or injury occurred would also be entered in item 40. 3. A review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the U.S. Army Human Resources Command Military Awards Branch, failed to reveal any orders for applicant. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170015011 4 1