ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 September 2019 DOCKET NUMBER: AR20190011287 APPLICANT REQUESTS: * The Army Board for Correction of Military Records (ABCMR) decision on the applicant’s case AR20170000159 was remanded to the Board by United States District Court for reconsideration applying the guidance articulated in the case of Haselwander v. McHugh, 774 F .3d 990 (D. D. Cir. 2014). * The applicant requests award of the Purple Heart for a wound he contends he received in combat in February 1969 in Vietnam. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Application for correction of military records with the following supporting document(s) * Letter request for reconsideration of initial denial of his application for award of the Purple Heart * Self-authored statement contending he should be awarded the Purple Heart * Two witness statements from members of his unit who witnessed the event in 1969 in which the applicant was injured * Photo of a partial armored personnel carrier (APC) with the comment, "[applicant's'] APC Land Mine Explosion, Vietnam, February 1969” * Five pages of military medical records, Standard Form (SF) 600 (Chronological Record of Medical Care), dated between 16 February 1968 and 24 April 1969 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20170000159 on 25 September 2018, and AR20150004873 on 29 October 2015. 3. On his DD Form 149, he states, “I was [on] combat patrol riding an M113 when we hit a land mine blowing me and my men off the vehicle. I injured my left elbow in the explosion and was treated two months later after the wound festered and I needed medical attention.” 4. In a more detailed letter in 1985 to the U. S. Army Reserve Components Personnel and Administration Center, the applicant states: a. In February 1969, his unit was assigned to the "Iron Triangle" area within the Republic of Vietnam. His company was on a reconnaissance patrol because of reported enemy activity in the area. b. During this period, he was assigned as the platoon sergeant because he was the senior sergeant/E-5. The platoon consisted of approximately 16 men and 3 APCs. There should have been 4 APCs but they had lost one to an enemy land mine. On 9 February 1969, the platoon was on its way to back up another company. His APC was leading the platoon when it hit an enemy land mine. There was a terrific explosion. The applicant provides a photo of an APC titled “[Applicant’s name] APC Land Mine Explosion Vietnam, Feb 1869.” [Analysis of the paper copy of the photo finds it blurry and not very clear. The photo shows the right side of the APC with a tread laying beside it. The APC has no distinguishable unit identification. There appears to be an individual squatting on the top of the APC but the individual is only shown from the shoulders down. No physical damage to the APC is showing other than the tread off laying beside the APC, although the right side forward drive gear and two wheels are not showing. From the picture, it is hard to determine their presence or condition. It is noted that APCs can throw or lose a tread for many different reasons, including mechanical failure.] c. Most of his men were injured and three were medically evacuated by helicopter. He received a wound to his left elbow and should have been evacuated; however, he did not get on the helicopter because he felt responsible for the platoon. His platoon was down to half with only 2 remaining APCs and he felt they needed his leadership. d. He tried to bandage his wound the best he could because they were not assigned medical personnel at the time. Within days, his wound became infected. They were too busy for him to seek medical attention for many weeks. Finally, in April, he became very ill. His wound had become severely infected and he was transported to base camp. He ended up in a field hospital where he was hospitalized for approximately 2 weeks. e. He wrongly assumed that the proper forms for the Purple Heart were completed; however, because of their unique situation, the forms were not completed. When he returned to the U.S., he assumed it was too late to pursue the issue. He is requesting that the award be considered at this time. He was able to contact Mr. R and Mr. M, who were wounded in the same incident. They have provided statements verifying the incident and his wound. 5. The witness statements from both Mr. R and Mr. M state that they were riding on or driving the APC on 9 February 1969 when the APC ran over a mine which exploded. 6. Mr. R stated, “I was driving the lead track in A Company when we ran over an anti-tank mine. Most of the squad was blown off the track [APC]. I, Pvt 1st Class, …was still in the driver's compartment, injured and dazed. I was pulled from the track by my Plt Sgt [applicant] who had sustained an injury to his left elbow from the explosion. I was tended to by Sgt [applicant] until the dust-off chopper arrived. Because of these actions, I feel that Sgt [applicant] deserves the Purple Heart and more for his actions that day in a hostile environment.” 7. Mr. M stated, “We were on the lead track (APC) in A Company when we ran over and detonated an anti-tank mine. Our entire squad was injured in some way. Most of us were blown from the track. [The applicant’s] left elbow was injured from the explosion. Our driver … was severely injured and confused, but despite his elbow injury Sergeant [applicant] helped pull him from the APC. [The applicant] attended to the injured and helped direct getting the injured on the dust-off chopper. Over the next several weeks, his wound would partial[ly] heal and then become re-infected until he left the field because of it. I am a witness to the fact that [the applicant] deserves the award of the Purple Heart for his injury in enemy action.” 8. The applicant’s military records show that he was inducted into the Army of the United States on 14 November 1967. He was sent to Vietnam on 28 April 1968 where he served in two infantry units. The applicant departed Vietnam on 27 April 1969 returning to the Fort Riley, Kansas. He was honorably released from active duty on 19 September 1969 for the convenience of the government (school release) and transferred to the U. S. Army Reserve. His DD Form 214 does not reflect the award of the Purple Heart or show any wound information. 9. Five pages extracted from his military medical records show the following: • 16 April 1969 – applicant complained of pain in his left. It was diagnosed as an infected wound described as a laceration on his left elbow with lymph gland infection in the upper left arm. The laceration was washed and drained. He was prescribed penicillin, valium, aspirin, and bed rest. There was no notation of the source of the laceration nor any record of a statement by the applicant as to the source of the laceration. • 16 or 17 April 1969 (number 16 is written over by 17), Battalion Aid Station 1/16, Republic of Vietnam – applicant complained of shortness of breath, pain in his left side and upper left arm, and he had a temperature. He was prescribed an increased level of Penicillin and given a tetanus shot. Other entries on 17 April 1969 show that he was given blood tests and x-rays taken of his chest and left elbow. He was admitted for observation. • 17 April 1969, Company C, 1st Medical Battalion - medical personnel recorded that the applicant had been in the field and sick for about 24 hours with weakness, shortness of breath (dyspnea), occasional vomiting, and an area of infection of the left elbow due to an insect bite. He was diagnosed with cellulitis of the left elbow with a small draining hole. [Cellulitis is a disease caused by bacterial infection of the skin.] More tests were prescribed and the abscess on the left elbow was drained. Malaria and pneumonia were considered. He was kept for observation. • 18 April 1969 – applicant continued to have a fever, but felt somewhat better; he tested negative for malaria and his infected elbow was excised but no abscess found. The wound was soaked and bandaged. Penicillin and IVs given. • 19 to 24 April 1969 - the applicant continued to improve; temperature became normal and his elbow was draining small amount of festering material. His left elbow cellulitis had subsided. 10. A review of the applicant's available service record reveals it is void of any orders or documentation indicating he was either wounded in action or awarded the Purple Heart. DA Form 20, item 40 (Wounds) is blank; item 41 (Awards and Decorations) does not list the Purple Heart. 11. A review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973, maintained by HRC, failed to reveal orders for the Purple Heart pertaining to the applicant. 12. The applicant’s separation physical included a Standard Form 89 (Report of Medical History) boxes 1 through 38 filled out by the applicant reporting his health on 12 September 1969, within 7 months of his injury and medical treatment. For box 34 (Have you been treated by clinics or physicians in the last 3 year?), he wrote “My arm was hurt in an injury.” The form does not note the cause of the injury or when it occurred. It is noted that the applicant did not enter any contention that his injury was combat related or that he had not received a Purple Heart for the injury. In box 39, the examining physician wrote in summary, “No sequelae,” i.e., there were no lasting effects of any medical conditions. 13. The applicant’s separation physical Standard Form 88 (Report of Medical Examination), dated 12 September 1969, shows the examining physician entered “None” in boxes 73 (Any Abnormality and Significant or Interval History) and 74 (Summary of Defects and Diagnoses), and in box 77 checked that the applicant was qualified for separation without any reservations. 14. In 1985, the applicant applied to the Military Awards Branch, U. S. Army Military Personnel Center, requesting award of the Purple Heart. The applicant included in his request the witness statement from Mr. R who also provided a statement for the application to the ABCMR. On 25 February 1987, the Chief of the Military Awards Branch sent the applicant a letter denying his request. He stated the basis for the denial as: “We are only permitted to award the Purple Heart at this late date if conclusive evidence is available to show that an individual was wounded as a direct result of enemy action and when the wounds were serious enough to require medical treatment that was recorded in official records. These standards have remained relatively unchanged for over 40 years.” “We have carefully reviewed your official military personnel file and medical records and there is no record that you were wounded as a direct result of hostile action. Your records do show that you were treated for an infection in April 1969 (over two months after the incident described in your letter), but the doctor indicated that he believed the infection was due to an insect bite.” “Unfortunately, we cannot accept Mr. Rs' statement to substantiate your entitlement to the Purple Heart because it conflicts with official Army records that were made in 1969. Additionally, the statement does not link any injury you may have sustained on February 8, 1969, with the treatment you received for the infection of your left elbow on April 17, 1969.” “Based on the foregoing, we have determined that there is no administrative basis whereby we may award you the Purple Heart based on the available records.” 15. In 2015, the applicant applied to the ABCMR for award of the Purple Heart. His application was assigned case number AR201500004873. The ABCMR examined his records and the evidence that he provided and denied his request. The ABCMR concluded that his DA Form 20 (Enlisted Qualification Record), Box 40 (Wounds) contained no entries indicating he was wounded in action and there is no evidence in his military records that indicates he was treated for a “combat-related” wound. Additionally, his name was not listed on the Vietnam casualty roster. They determined that the evidence and witness statement were unconvincing and insufficient to prove that the applicant’s injury justified award of the Purple Heart. 16. In 2016, the applicant requested that the ABCMR reconsider his request for award of the Purple Heart. His request was assigned case number AR20170000159. He stated, “I am requesting that the board reconsider my application based on the new evidence that I was hospitalized in Vietnam with the 1st Medical Battalion on April 16, 1969. Five pages of my medical records for this time period are attached that verify that I did receive medical treatment to my left elbow. The infection as a result of my wound gave me a high fever. I was very sick and somewhat disoriented during this time. I would have sought medical attention at the time my injury occurred, however my responsibilities as platoon sergeant prevented me from leaving my post. As additional new evidence, I have attached a photo of my disabled APC that was taken after the land mine explosion that caused my wound. 17. The ABCMR reexamined case AR201500004873 with its records and the evidence provided. They examined the additional evidence provided by the applicant. On 25 September 2018, the ABCMR determined that the evidence presented did not demonstrate the existence of a probable error or injustice in the records to justify awarding the Purple Heart. 18. Army Regulation (AR) 600-8-22 (Military Awards) states in pertinent part: a. The Purple Heart is awarded for to Service Members wounded in action against an opposing enemy force or as the result of an act of any such enemy. 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 in subparagraph a above. The wound for which the award is made must have required treatment, not merely examination, by a medical officer and the treatment of the wound documented in the Service Member’s medical and/or health record. c. Enemy-related injuries which justify award of the Purple Heart include: (1) injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; (2) Injury caused by enemy-placed trap or mine; or (3) injury caused by vehicle or aircraft accident resulting from enemy fire. d. Injuries or wounds which do not justify award of the Purple Heart include: (1) abrasions and lacerations (unless of a severity requiring treatment by a medical officer), and (2) disease not directly caused by enemy agents. 19. The two witness statements provided by the applicant state that he injured his left elbow on 9 February 1969 in connection with their APC hitting a mine; they do not describe or define the injury. In the applicant’s statement, he states that he received a wound on his left elbow on 9 February 1969 but he does not describe or define the wound or the source of the wound. The applicant’s medical records on 16 April 1969 (2 months later) show that he had a laceration on his left elbow, however, it does not show the source of the left elbow laceration, that it was the result of enemy action, that is was received in combat against the enemy, or that it originated or occurred on 9 February 1969. Further, the disease cellulitis and infection in the left elbow that occurred in mid-April were diagnosed by the attending physician as caused by an insect bite. 20. The applicant’s medical records show that he contracted the disease cellulitis in his left elbow and arm with cellulitis symptoms of festering, fever, shortness of breath, and pain. Cellulitis is a disease caused by bacterial infection, not caused by enemy agents such as biological weapons. Celluliltis is caused by staphylocosssus or streptoccus bacteria which naturally occur in the environment. Injuries or wounds caused by disease not directly caused by enemy agents do not satisfy the criteria for award of the Purple Heart per AR 600-8-22. 21. The court remand requested that the ABCMR reconsider its decision in this case applying the principles of Haselwander v. McHugh, 774 F .3d 990 (D. D. Cir. 2014) which outlines three standards of review that the ABCMR must comply with: a. The ABCMR must consider all evidence provided or that is otherwise available in the military records and must provide evidentiary support for its decisions. b. The ABCMR must show that the board’s decision is not arbitrary and capricious, an abuse of discretion, or otherwise no in accordance with law. The board’s explanation of its determination must be coherent and comprehensible. c. The ABCMR has a mandate to take action to correct an injustice or error in the military records when it is clearly presented before them that such an injustice or error exists, regardless if the applicant specifically identifies what correction is desired. 22. In Haselwander, the void/omission in the contemporaneous medical records was the error the applicant sought to be corrected and the injustice that prevented him from receiving a Purple Heart. The error in the record was the missing entry of his medical treatment records that his wounds were sustained in enemy action. In the case currently before the Board, the ABCMR previously denied relief on the basis, at least in part, that "no documentary evidence generated at the time (in 1969) … verifies the left elbow injury that eventually became infected was the direct result of hostile action." Similar to Haselwander, the alleged error in the record may be the missing entry in the military records that his injury/wound was the direct result of hostile enemy action. 23. Even if the ABCMR determines a preponderance of the evidence supports a finding that there was an error in the applicant’s military medical records and in his DA Form 20 in failing to show he was wounded in action against the enemy or that his laceration was the result of hostile enemy action, pursuant to AR 600-8-22 a laceration wound must be of a severity requiring treatment by a medical officer to warrant a Purple Heart. With respect to the later developed left arm infection – that appears to be the result of an infection and not the original laceration. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, and applicable regulation, the Board did not find that a preponderance of the evidence supports relief in this case. 2. The issue presented to the ABCMR is whether a preponderance of the evidence supports a finding that the injury the applicant suffered in Vietnam matches the criteria for the Purple Heart Award. a. In general terms, each approved award of the Purple Heart must meet each of the following criteria: (a) the wound must result from enemy or hostile action, international terrorist attack, or friendly fire; (b) the wound must have required treatment by a medical officer; and (c) the record of medical treatment must have been made part of the wounded Soldier’s medical record. b. The applicant has demonstrated by a preponderance of evidence that he suffered an injury of some degree on 9 February 1969 as a result of an enemy landmine explosion that damaged an armored personnel carrier (APC) in which the applicant and a number of fellow Soldiers were passengers. The applicant’s statement and witness statements indicate that the explosion from the enemy mine affected the applicant’s left elbow. The elbow was not fractured or bleeding so profusely such that acute medical treatment was needed right away. Instead, the applicant attended to the injury himself and continued to perform his military duties. Thus, the record is fairly clear that the applicant’s injury did not receive medical treatment immediately after the injury. Nor did the injury receive medical treatment during the 10th through 28th of February 1969; the 1st through the 31st of March 1969; or from the 1st through the 15th of April 1969. c. On 16 April 1969, his left elbow was treated at a Battalion Aid Station. The Board carefully reviewed the medical records made contemporaneously with the applicant’s visit to the aid station in April 1969. Those records do not establish that the elbow ailment for which he was being treated was proximately related to the injury he received two months earlier. This disconnect is significant because one must assume that a medical care provider would take great care in determining the origin of an injury he or she is about to treat. One would also assume that a medical care provider might treat an injury that resulted from an ordnance blast (which might include shrapnel imbedded into the skin and other tissue) differently from an injury that resulted from a dive into a foxhole or from collisions with jungle trees or bushes. Consequently, one would expect that an injury’s origin would (a) be an inquiry of significant importance and (b) be conspicuously annotated in the medical records. In the applicant’s case, the medical records do not refer to an explosion, to shrapnel, or to combat fire as a cause for the applicant’s elbow problems. As for the infection in the elbow, the medical records attribute the infection as being due to an insect bite. d. The applicable Army regulation provides that “[w]hen contemplating eligibility for the [Purple Heart], the two critical factors commanders must consider is the degree to which the enemy or hostile force caused the wound, and was the wound so severe that it required treatment by a medical officer.” Here, the facts and circumstances of the case do not match the overall criteria and standards for the Purple Heart. The facts and circumstances that are inconsistent with award’s criteria include the two-month delay in receiving medical treatment and the uncertainty as to whether the symptoms that motivated the visit to the aid station were proximately caused by the landmine blast or, instead, caused by an insect bite or some other injury. Some might argue that it was the applicant’s own courage and devotion to duty that caused him to refrain from seeking immediate medical attention, but the applicable regulation specifically excludes from Purple Heart consideration abrasions or lacerations, bruises or contusions, and soft tissue injuries unless such injuries are “of a severity requiring treatment by a medical officer.” Although the applicant’s injury might have benefitted from attention from a medical provider during the 65 days between the date of the landmine explosion and the date he visited the aid station, the applicant’s ability to doggedly return to his difficult duties seems to demonstrate that such medical treatment was not required. e. As for whether this case falls within the holding articulated by the U.S. Court of Appeals for the D.C. Circuit in Haselwander v. McHugh, this Board believes the applicant’s case is distinguishable. In Haselwander, there was virtually no dispute that the applicant was truly wounded in combat; virtually no dispute that the wound he received truly required medical attention; and virtually no dispute that he truly did receive the required medical attention. The issue that vexed the ABCMR in Haselwander was that no contemporaneous medical documentation was created to memorialize the applicant’s receipt of the requisite medical treatment. The medical documentation was absent because the medical personnel at the aid station did not have the opportunity to complete the medical paperwork. For the ABCMR, the absence of a contemporaneously-created corroborating medical record precluded any possible award of the Purple Heart because one of the award’s criteria is that “[t]reatment of the wound will be documented in the member’s medical and/or health record.” The ABCMR considered the absence of the corroborating medical record to be paramount to a categorical exclusion for consideration for the award. The U.S. Court of Appeals for the D.C. Circuit, however, declared that the ABCMR had the authority, and therefore the obligation in appropriate circumstances, to correct an applicant’s medical records to reflect that the applicant actually received medical treatment for a wound that otherwise met the Purple Heart criteria. The Haselwander decision provided that a corrections board should construe the existence of a qualifying medical record if the evidence of the particular case establishes that a) the applicant was wounded by enemy action during combat, b) the wound required medical treatment, and c) the applicant actually received medical treatment for the enemy-inflicted wound. f. In Haselwander, there was a clear evidentiary nexus between the enemy- inflicted wound and the medical treatment received. But in this case, the preponderance of evidence does not support that the applicant’s enemy-inflicted wound required medical treatment or that he actually received treatment for the enemy-inflicted wound. In this case, there is considerable evidence that the wound did not require medical treatment, including the evidence that the applicant received no medical treatment for 65 days and that in the meantime he was able to perform his duties. Considerable evidence also exists that the elbow problems for which he received treatment in April 1969 were not due to the enemy-inflicted wound. Such evidence includes the absence of any mention in the medical record of the landmine blast and the existence of an annotation indicating the infection was due to an insect bite. Thus, the facts in this case are distinguishable from the facts in Haselwander. Consequently, and unfortunately, the Board must find that the facts in this case do not match the criteria for the Purple Heart Award. The Board’s decision in this case of course does not detract in the slightest the applicant’s heroic performance of duty while serving in Vietnam. 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 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. 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 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. AR 600-8-22 (Military Awards), paragraph 2-8, states in pertinent part: a. Subparagraph b. The Purple Heart is awarded to members of the Armed Forces of the United States who 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) As the result of an act of any such enemy of opposing Armed Forces. (4) As the result of an act of any hostile foreign force. b. Subparagraph c. 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. 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 Servicemember’s medical and/or health record. c. Subparagraph e. When contemplating eligibility for the Purple Heart, the two critical factors commanders must consider are the degree to which the enemy or hostile force caused the wound, and was the wound so severe that it required treatment by a medical officer. d. Subparagraph f. Examples of enemy-related injuries which justify award of the Purple Heart are as follows: (1) Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action. (2) Injury caused by enemy-placed trap, mine, or other improvised explosive device. (3) Injury caused by vehicle or aircraft accident resulting from enemy fire. e. Subparagraph g. Examples of injuries or wounds which do not justify award of the Purple Heart include: (1) Disease not directly caused by enemy agents. (2) Abrasions and lacerations (unless of a severity requiring treatment by a medical officer). (3) Soft tissue injuries (for example, ligament, tendon or muscle strains, sprains, and so forth). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190011287 13 1