ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 August 2019 DOCKET NUMBER: AR20180009488 APPLICANT REQUESTS: reconsideration of his previous request for award of the Purple Heart (PH) and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Records). 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 AR20080008369 on 17 September 2008. 2. The applicant states, in effect, he has the PH but it is not on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). He should get the PH because the service owes it to him. 3. A review of the applicant’s service record shows: a. He was inducted into the Army of the United States on 29 August 1967. He completed advanced individual training at Fort Polk, LA and was awarded military occupational specialty 11B (Light Weapons Infantryman). b. The applicant's service record is void of documentation awarding him the PH. c. His DA Form 20 (Enlisted Qualification Record) shows in: * item 31 (Foreign Service) he served in Vietnam from 15 February 1968 to 12 February 1969 * item 38 (Record of Assignments) shows he was assigned to 2nd Battalion, 7th Cavalry, 1st Cavalry Division, from 29 February 1968 to 12 February 1969, in duty MOS 11B and 2nd Battalion, 133rd Infantry from 21 March - 27 August 1969, in duty MOS 11B * item 40 (Wounds) is blank * item 41 (Awards and Decorations) the PH is not listed d. His available records contain no documentation of wounds or injuries incurred during his service in Vietnam. His name is not shown on the Vietnam casualty roster. e. His records do not contain an official Army notification or a Western Union telegram notifying his next of kin of an injury. This was a normal notification procedure during the Vietnam War. f. On 28 August 1969, he was honorably released from active duty and transferred to the United States Army Reserves (USAR). He completed 2 years on active duty. His DD Form 214 shows he was awarded or authorized: * National Defense Service Medal * Vietnam Service Medal with one Bronze Service Star * Vietnam Campaign Medal with 60 Devices * Army Commendation Medal * Combat Infantryman Badge * Air Medal 4. On 29 April 2008, the applicant requested the Purple Heart. On 17 September 2008, the ABCMR determined that the evidence presented did not demonstrate the existence of probable error or injustice. The Board determined the overall merits of the case were insufficient as a basis for correction of the records of the applicant. 5. By regulation 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. 6. Army Directive 2011-07 (Awarding the Purple Heart), dated 18 March 2011, provides clarifying guidance to ensure the uniform application of advancements in medical knowledge and treatment protocols when considering recommendations for award of the Purple Heart. a. Approval of the Purple Heart requires the following factors among others outlined in Department of Defense Manual 1348.33 (Manual of Military Decorations and Awards), Volume 3, paragraph 5c: wound, injury or death must have been the result of an enemy or hostile act, international terrorist attack, or friendly fire and the wound for which the award is made must have required treatment, not merely examination, by a medical officer. Additionally, treatment of the wound shall be documented in the Soldier's medical record. b. 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 Soldier’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 6. By regulation AR 672-5-1 (Awards), the Purple Heart 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. 7. By regulation, 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. BOARD DISCUSSION: 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. After review of the application and all evidence, the Board found relief is not warranted. The applicant’s contentions were carefully considered. His record is void of evidence he was previously awarded the Purple Heart and he did not provide any evidence that shows he is entitled to the Purple Heart such as medical records and other documentary evidence reflecting injuries from an armed combatant during combat operations. The Board agreed not 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 AR20080008369 on 17 September 2008. 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 (AR) 672-5-1 (Awards), in effect at the time, prescribes policies and procedures for military awards and decorations, to include the Purple Heart (PH). a. The Purple Heart is limited to members of the Armed Forces of the United States who, while serving under component authority in any capacity with one of the U.S. Armed Services after 5 April 1917, has been wounded or killed, or who has died or may hereafter die after being wounded— * in any action against an enemy of the U.S * in any action with an opposing armed force of a foreign country in which the Armed Forces of the U.S. are or have been engaged * while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the U.S. is not a belligerent party * as the result of an act of any such enemy of opposing Armed Forces * as the result of an act of any hostile foreign force b. A Purple Heart is authorized for the first wound suffered under conditions indicated above. 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 under one or more of the conditions listed above. A physical lesion is not required, provided the concussion or other form of injury is directly due to enemy, opposing armed force, or hostile foreign force action. It is not intended that such a strict interpretation of the requirement for the wound/injury to be caused by direct result of hostile action be taken which would preclude the award being made to deserving personnel. For example: In a case such as an individual injured while making a parachute landing from an aircraft that had been brought down by enemy fire; or, an individual injured as a result of a vehicle accident caused by enemy fire, the decision will be made in favor of the individual and the award will be made. c. A wound for which the award is made must have required treatment by a medical officer and records of medical treatment for wounds or injuries received in action as described above must have been made a matter of official record. 2. Army Directive 2011-07 (Awarding the Purple Heart), dated 18 March 2011, provides clarifying guidance to ensure the uniform application of advancements in medical knowledge and treatment protocols when considering recommendations for award of the Purple Heart. a. Approval of the Purple Heart requires the following factors among others outlined in Department of Defense Manual 1348.33 (Manual of Military Decorations and Awards), Volume 3, paragraph 5c: wound, injury or death must have been the result of an enemy or hostile act, international terrorist attack, or friendly fire and the wound for which the award is made must have required treatment, not merely examination, by a medical officer. Additionally, treatment of the wound shall be documented in the Soldier's medical record. b. 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 Soldier’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 3. Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9, 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 stated the date of the wound or injury would also be placed in item 40. 4. Army Regulation (AR) 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. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that, 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. c. 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) AR20180009488 4 1