IN THE CASE OF: BOARD DATE: 12 May 2021 DOCKET NUMBER: AR20200002400 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) * Applicant's Letter, undated * Standard Form 89 (Report of Medical History), 13 January 1970 * Department of Veterans Affairs (VA) Form 10-P-10 (Medical Certificate), 18 June 1970 * VA Forms 10-1000 (Hospital Summary), 21 May 1970 and 26 June 1970 * VA Forms 21-4138 (Statement in Support of Claim), 3 June 1997 and 13 June 1997 * VA Form 10-79781 (Oral Maxillofacial Defined Data Base), undated * Physician's Letters, 8 May 1998 and 16 May 1998, with Curriculum Vitae * Witness Statement, 18 December 1998 * Witness Statement, undated * U.S. Army Human Resources Command (HRC) Letter to Applicant's Congressional Representative, 1 June 2015 * HRC Letter to Applicant's Congressional Representative, 4 March 2019 * HRC Letter to Applicant, 12 March 2019 * Applicant's Letter to HRC, 25 September 2019 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 AR20030 on 2 October 2003. 2. The applicant states he meets the guidelines for award of the Purple Heart as supported by the enclosed evidence. 3. He enlisted in the Regular Army on 13 February 1967 for a period of 3 years. 4. His DA Form 20 (Enlisted Qualification Record) shows in: * item 31 (Foreign Service) – he received overseas tour credit for service in U.S. Army Pacific, Vietnam, from 19 March 1968 through 18 March 1969 * item 38 (Record of Assignments) – * he was assigned to the 1st Military Police Company, 1st Infantry Division, U.S. Army Pacific, effective 5 April 1968 * he departed en route to the continental United States effective 18 March 1969 * item 40 (Wounds) – no entry * item 41 (Awards and Decorations) – he was awarded or authorized the – * National Defense Service Medal * Vietnam Service Medal * Republic of Vietnam Campaign Medal with Device (1960) * two overseas service bars 5. His Standard Form 89 (Report of Medical History), 13 January 1970, for the purpose of separation shows he reported he currently had or had ear, nose, or throat trouble in the past: * item 20 (Have You Ever Had or Have You Now) – both "Yes" and "No" blocks are checked * item 31 (Have You Had, or Have You Been Advised to Have Any Operations?) – "Nose" was noted * item 39 (Physician's Summary and Elaboration of All Pertinent Data) – history of deviated septum was noted 6. He was honorably released from active duty and transferred to the U.S. Army Reserve on 14 January 1970. His DD Form 214 does not show award of the Purple Heart. 7. The VA Form 10-1000 (Hospital Summary), 21 May 1970, shows: a. Past History, Present Illness: In September 1968, he broke his nose in Vietnam as a result of an explosion. It seemed that a bomb hit a house in Vietnam and it exploded. He got hit with a piece of wood and other debris, causing nasal deformity, both externally and internally. He has been unable to breathe from the left side of his nose as a result of that. b. His diagnosis was traumatic nasal septal deviation. He underwent surgery on 18 May 1970. 8. The VA Form 10-1000 (Hospital Summary), 26 June 1970, shows: a. History: He was hit in the nose in Vietnam, sustaining an injury to his nasal septum and external nasal. He was hit with debris (wood) from a house that was blown up. b. His diagnosis was nasal deformity, traumatic origin. He underwent rhinoplasty (plastic surgery procedure for altering and reconstructing the nose) on 22 June 1970. 9. His records contain no contemporaneous medical records showing he was wounded in action. His name is not shown on the Department of the Army Office of the Adjutant General Casualty Division Casualty Reference Name Listing for the period 1 January 1961 through 30 June 1973, a battle and non-battle listing of Soldiers who were killed, wounded, sick, captured, or missing during their service in Vietnam. 10. Mr. M____ P____ stated in the VA Form 21-4138 (Statement in Support of Claim), 3 June 1997, he believes the applicant was wounded on guard duty. He remembers his face and arm being injured and his arm was bandaged and in a sling. He thinks it was a burn from a phosphorous grenade. 11. Mr. K____ E____, stated in the VA Form 21-4138, 13 June 1997, he served with the applicant in Vietnam in 1968 and knows he was wounded. 12. The letter from the applicant's physician, 8 May 1998, states: a. According to the hospital records of 1970, the applicant came to the hospital complaining of having broken his nose during a bombing explosion in Vietnam in 1968 and subsequently being unable to breath from the left side of his nose. b. He operated on the applicant to correct a deviated nasal septum and a second time to correct the shape of his nose. As written in the operative findings, the findings were consistent with the history of trauma ascertained during service in the military. c. Because of the degree of nasal airway obstruction which the applicant had at the time of surgery (i.e., complete obstruction of one half of his nasal airway), he would not have been a candidate for military service had this not been corrected before induction. 13. On 16 May 1998, his physician stated he reviewed the applicant's records and based on the records, he opined the applicant's injury is consistent with the history of trauma while in the military. He has seen and repaired many combat injuries and the applicant's injury was comparable to other combat injuries. 14. The witness statement from Mr. R____ G____ (copied from claims folder VA), 18 December 1998, states: a. He met the applicant in March 1968 at Dian Base Camp, Vietnam. He was close to leaving Vietnam and the applicant had just arrived. He felt as though the applicant was his replacement. b. In late March 1968, an enemy rocket hit a building close to their location and the applicant got hit in the face by a piece of flying material from the blast. He remembered he had cuts around his nose, eyes, and his nose was bleeding and appeared to be broken. Once the fighting had ceased and the road was secured, they were able to continue on and drove straight to the medic's tent to see to his wounds. c. He left Vietnam shortly after that in April 1968. 15. The witness statement from Mr. D____ O____ (copied from claims folder VA), undated, states: a. To the best of his recollection, he recalls an incident that took place at the west gate of Dian Base Camp in late 1968. He specifically remembered the applicant was burnt on his arm by a white phosphorus grenade (aka a trip flare). These trip flares were set up every night at dusk. He also set them up and they could become very tricky at times. b. He wasn't with the applicant the night he was burned, but he does remember seeing his arm bandaged and everyone was talking about how he was burned. 16. The applicant's letter (copied from claims folder VA), undated, described his service in the U.S. Army, including his service in Vietnam and the events of his injury. He stated: a. While engaging the enemy, a building they were behind took a direct hit from an enemy mortar round, destroying the building and sending debris flying. A piece of flying debris caught him across the face, shattering his nose and breaking bones in his cheeks. He was taken to a base camp, treated at their field hospital, and returned to his unit. b. He later underwent two operations at a VA hospital in 1970. To this day he continues to have pain and trouble breathing through his nose. c. In mid-April 1968, he was escorting convoys and while engaged with the enemy in a firefight, he was wounded in his right leg, 4 inches above the knee, by AK-47 assault rifle fire. The round passed clear through his leg, exiting his lower thigh. He was taken back to the medical facility, treated, and he rejoined his unit upon recovery. e. In July 1968 while escorting a convoy, they came under a mortar attack. His jeep was hit and fragments pierced his lower lip, going clear through and cracking three teeth. One of his teeth had to be removed and was later replaced at Fort Dix, NJ. Another Soldier in the jeep was bleeding and he couldn't stop the bleeding. The Soldier died in his arms and he will never forget that. f. In late October 1968 while assigned to guard duty, his unit came under attack. A white phosphorous grenade exploded and he got hit in his right hand. He was taken to the base hospital and treated when the fight ended. g. He also received a wound above his left eye and two additional wounds above his forehead. h. He has been awarded five Purple Hearts, which he has not received; one Presidential citation for crossing into Cambodia; and several company and unit citations, which he did receive. 17. On 2 October 2003, the ABCMR denied his request for the award of the Purple Heart. The Board determined: a. Although the VA has concluded the applicant's nose condition was the result of a service-connected injury, there are no service medical documents which confirm the applicant was wounded as a result of hostile action, that he required treatment by a medical officer at the time, or the treatment was made a matter of official record. b. The applicant's entrance physical examination indicated he had sustained a broken nose in childhood, and his separation physical examination made no mention of his nose condition as having resulted from hostile action. The applicant authenticated several documents, including his separation document and his Enlisted Qualification Record, neither of which reflected entitlement to the Purple Heart. c. Although the applicant provided a statement to the VA from an individual who claims to have been with the applicant at the time of his injury, there is no evidence from any official source and no medical evidence that confirms the applicant was wounded. In the absence of more compelling evidence, the witness statement, rendered years after the fact, is insufficient evidence on which to base award of the Purple Heart. 18. The HRC Awards and Decoration Branch letter, 13 March 2012, responded to the applicant's Congressional representative, stating: a. They are unable to verify the applicant's entitlement to the Purple Heart. The Purple Heart is awarded for wounds or injuries received as a direct result of enemy action. The wounds must have required treatment immediately after or close to the event and been made a matter of official record. b. The applicant's medical records from both the VA and his Official Military Personnel File do not indicate treatment for wounds received as a direct result of enemy action immediately or close to the incident in question. All of the documentation provided is for treatment after the incident. 19. Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 215 (Correction to DD Form 214), 13 March 2012, shows his DD Form 214 was corrected as follows: * delete – Vietnam Service Medal * add – * Army Good Conduct Medal * Vietnam Service Medal with four Bronze Service Stars * Meritorious Unit Commendation * Republic of Vietnam Gallantry Cross with Palm Unit Citations * Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation 20. The HRC Awards and Decoration Branch letter, 1 June 2015, responded to the applicant's Congressional representative stating: a. As stated in previous correspondence with another Congressional representative on 13 March 2012, we are unable to verify the applicant's entitlement to the Purple Heart. A review of historical casualty record from the Vietnam era could not locate the applicant's name among the list of battle casualties. b. Military medical documentation is required from immediately after or close to the incident in question, reflecting his treatment by a medical officer for wounds or injuries received as a direct result of enemy action. The injuries may have been treated by a medical professional other than a medical officer, provided a medical officer included a statement in his 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. 21. The HRC Awards and Decorations Branch letters, 4 March 2019 and 12 March 2019, responded to the applicant and his Congressional representative, stating HRC was unable to act on the applicant's request to be awarded the Purple Heart, due to the fact the award was formally denied by the ABCMR on 3 October 2003. As the highest adjudicating authority, the ABCMR acts on behalf of the Secretary of the Army and has final determination over matters of this nature. 22. The applicant's letter to HRC, 25 September 2019, states: a. He is writing in response to the HRC letter, 1 June 2015. He has collected what he believes to be the necessary supporting documents as described in the HRC letter. b. In addition, he is providing the following statement concerning his experience and events that warrant award of the Purple Heart: (1) On 13 September 1968, a rocket exploded near his position and he was hit in the face by debris and shrapnel. A field medic examined his wound and determined he might have a broken nose and bruising below his eyes. (2) He finished his tour in Vietnam and was reassigned to Fort Dix, NJ. At Fort Dix, they thought his nose was broken and recommended surgery to repair and improve his breathing. He had the choice of repairing his nose at Fort Dix or at a VA hospital near his home in New York. He chose to wait until after his discharge and have it done near home. (3) He was discharged in January and was examined by the VA hospital in Bronx, NY. He had surgery in May 1970 and he was informed the damage was more extensive (bone fragments fell out) and reconstruction surgery was necessary. A second surgery was done approximately 3 months later. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and regulatory guidance. The Board considered the applicant’s statement, his record of service and documents provided by the applicant. Evidence in the record show the applicant was hit in the nose in Vietnam, sustaining an injury to his nasal septum and external nasal. He was hit with debris (wood) from a house that was blown up. Based on governing regulations, there is no medical record showing the applicant received wounds caused by enemy forces that required treatment by medical personnel. The Board determined that no documentation or supporting statements indicated the applicant had 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 as specified in the criteria for award of the Purple Heart. Therefore, the applicant did not meet the requirements for award of the Purple Heart 2. 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. 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 Board found 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 AR200308 on 2 October 2003. 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 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record. It is not an investigative body. 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. 2. Army Regulation 600-200 (Enlisted Personnel Management System), 24 March 1965, 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. Additionally, the date the wound or injury occurred would also be entered in item 40. 3. Army Regulation 672-5-1 (Military Awards), 8 April 1968, stated the primary purpose of the awards program is to provide tangible evidence of public recognition for acts of valor and for exceptional service or achievement. The Purple Heart is awarded to any member of the Armed Forces who has been wounded or killed, or who has died or may hereafter die after being 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 party; as a result of an act of any such enemy of opposing armed forces; or as the result of an act of any hostile foreign force. a. For the purpose of considering an award of this decoration, a "wound" was defined as an injury to any part of the body from an outside force or agent sustained as a result of action against an enemy. A physical lesion was not required, provided the concussion or other form of injury was directly due to enemy, opposing armed force, or hostile foreign force action. b. It was 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: 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 was made must have required treatment by a medical officer and records of medical treatment for wounds or injuries received in action must have been made a matter of official record. 4. Army Regulation 600-8-22 (Military Awards), currently in effect, 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 as the result of an act of any hostile foreign force. 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. When 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. d. Each approved award of the Purple Heart must exhibit all the following factors: * wound, injury, or death must have been the result of enemy or hostile act, international terrorist attack, or friendly fire * the wound or injury must have required treatment by medical officials * the records of medical treatment must have been made a matter of official Army records //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200002400 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1