ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 April 2019 DOCKET NUMBER: AR20180005073 APPLICANT REQUESTS: 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) * Document A – DD Form 149 Continuation Sheet * Document B – Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 15 August 2015 * Document C – DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 20 September 1970 * Document D – State Board of Health, Division of Vital Statistics, State of Kansas, Standard Certificate of Live Birth, dated 6 July 1948 * Document E – Progress Notes from Primary Care, dated 31 January 2000 * Document F – DA Form 664 (Serviceman's Statement Concerning Application for Compensation from the Veterans Administration), dated 20 September 1970 * Document G – Letter from the VA, dated 17 March 1995 * Document H – Veterans Administration Identification Card, dated 4 March 1991 * Document I – Legend, Depiction of Action the Night, dated 13 January 1970 * Document J – Bronco Tribune, volume III, number 10, dated 29 May 1970 * Document K – Photograph Number 1, undated * Document L – Photograph Number 2, undated * Document M – Photograph Number 3, undated * Document N – Photograph, undated * Document O – Letter, dated 9 February 1970 * Document P – Letter, dated 16 January 1970 * Document Q – Letter, dated 14 January 1970 * Document R – Witness Statement, dated 4 March 1997 * Document S – Witness Statement, dated 8 March 1991 * Document T – Witness Statement, dated 2 September 2015 * List of Relevant Documents included in Support of Claim, undated * Additional Documents – * Privacy Act Waiver, dated 1 June 2017 * Letter from Congressional Representative, dated 12 June 2017 * Letter to Congressional Representative, dated 23 June 2017 * Self-authored Letter to the President, dated 3 January 2018 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 AR1998013696, dated 26 May 1999. 2. The applicant states: a. He was treated by medics at the battalion first aid station on the nights of 13 January 1970 and 10 May 1970. b. He was told by Sergeant First Class x____ x____ (platoon sergeant) that he would be submitted for a Purple Heart for each of these instances. c. He assumed the necessary documentation was made at the time of medical treatment at the aid station. d. He assumed he was submitted for the awards and would receive them at some point, perhaps even after his return from overseas or upon his expiration term of service. e. He was wounded by incoming enemy mortar rounds on the night of 13 January 1970 while serving as an ammunition bearer and on the night of 10 May 1970 while serving as a squad leader in the mortar platoon of Company E, 3d Battalion, 1st Infantry Regiment, 11th Light Infantry Brigade, 23d Infantry Division. 3. His records show he was assigned to Company E, 3d Battalion, 1st Infantry Regiment, 11th Light Infantry Brigade, as squad leader from 29 August 1969 through 29 April 1970. He participated in two campaigns during this period. 4. His available records contain no documentation of wounds or injuries incurred during his service in Vietnam. 5. No witness statements were available at the time of the incident. 6. Item 40 (wounds) of his DA Form 20 (Enlisted Qualification Record) contains no entries. 7. His separation Report of Medical Examination, dated 20 September 1970, shows no clinical evaluation notes (describe every abnormality in detail). Item 74 (summary of defects and diagnosis) contains no entries. 8. He was released from active duty on 20 September 1970. His DD Form 214 does not show award of the Purple Heart. 9. His name is not shown on the Vietnam casualty roster. 10. A review of the Awards and Decorations Computer Assisted Retrieval System, an indexed of general order issued during Vietnam era between 1965 and 1973 maintained by the U.S. Army Human Resources Command Awards and Decorations Branch, failed to reveal orders awarding him the Purple Heart. 11. A witness statement from former Sergeant x____ x. x____, dated 8 March 1991, states: a. The applicant was in another squad at another gun pit and was injured by incoming rounds, but not seriously. b. The applicant was treated at the aid station and returned to his squad either that night or the following day. c. He did not recall any other injuries involving his platoon on that night. 12. The Army Board for Correction of Military Records denied his request for award of the Purple Heart in Document Number AR1998013696 on 26 May 1999. The Board determined there was no evidence of record available that shows he was wounded or treated for wounds sustained as a result of hostile action in Vietnam. 13. VA Progress Notes from the staff physician, dated 31 January 2000, noted: * scar tissue on his right ear drum was present on his examination * scar tissue on back of his left hand was present on his examination * scar tissue on back of his neck was present on his examination * spondylosis of lower back shown by May 1997 lumbar spine films * healed fracture of the his left clavicle shown by x-ray in February 1996 14. A witness statement from former Captain X____ X. X____, dated 2 September 2015, states: a. He was the commander of Company E, 3d Battalion, 1st Infantry Regiment, 11th Light Infantry Brigade, 23d Infantry Division, on the night of 10 May 1970. b. The applicant suffered shrapnel and other wounds when an enemy 82-millimeter mortar round exploded near his position. c. The applicant was carried by stretcher to the battalion aid station by other members of the platoon for treatment and was returned to his platoon in a light duty status. BOARD DISCUSSION: Per the regulatory guidance on awarding the Purple Heart, the applicant must provide or have in his service records substantiating evidence to verify that he was injured, 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. After reviewing the application and all supporting documents, the Board found insufficient medical evidence to meet the regulatory standard for the Purple Heart and thus recommended denying the request. 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 is insufficient to demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case lack justifiable basis for correction of the records of the individual concerned. 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. Army Regulation 600-8-22 (Military Awards) prescribes Department of the Army policy, criteria, and administrative instructions concerning individual and unit awards. The Purple Heart is awarded for a wound sustained in action against an enemy or as a result of hostile action. Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record. a. The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather, he or she is entitled to it upon meeting specific criteria. 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 of the DA Form 20. This regulation further stated the date the wound or injury occurred would also be entered in item 40. ABCMR Record of Proceedings (cont) AR20180005073 5 1