IN THE CASE OF: BOARD DATE: 8 September 2021 DOCKET NUMBER: AR20200009487 APPLICANT REQUESTS: the following through his Member of Congress: * award of the Purple Heart * correction of his medical records to show his injury was a result of his service in Vietnam * correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) ending 1 March 1971 to show he Purple Heart * a personal appearance hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * two DD Forms 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Self-authored Statement, 18 May 2020 * Photograph of Rocket Shrapnel * U.S. Army Human Resources Command (HRC) letter to his Member of Congress, 19 March 2020 * DA Form 1594 (Staff Journal or Duty Officer's Log) (pages 4-8 of 16) * Five Eyewitness Statements and a Physician's Letter * Department of Veterans Affairs (VA) Decision Review Officer Decision, 13 February 2020 * DD Form 214 * Correspondence from his Member of Congress and HRC FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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. The applicant states he was wounded by shrapnel during a firefight with enemy forces while serving with the 1st Cavalry Division in Vietnam in March 1970. Because of the combat situation, he could not be extracted and was treated in the field by his unit's combat medic. The medic was subsequently killed in action and his records were lost in the battle. He provides supporting evidence and requests correction of his records to show he was wounded in action and qualifies for award of the Purple Heart. He further states: a. HRC denied his request for correction of his medical records documenting his injury as a result of his service in Vietnam and award of the Purple Heart. b. The injury occurred in action with enemy forces on 22 March 1970. He was serving in Company A, 1st Battalion, 8th Cavalry Regiment, 1st Cavalry Division. The engagement started around noon and lasted for about 20-25 minutes, which killed one Soldier and wounded eight others. A medical evacuation helicopter was able to extract four of the wounded, but started taking enemy fire and was forced to break station, leaving him and three others on the ground. c. He was treated by the platoon medic, Sergeant “Doc” C____. The paper tags attached to him for transport did not survive the jungle environment, as the company could not be extracted for several days. The medic removed the shrapnel in the field and treated and bandaged the wound. He cleaned and bandaged the wound each morning and evening until they could be airlifted out. He did not believe that further attention was necessary at an aid station. In a later firefight, "Doc" was killed in action and his records were lost in the battle. d. He provides four notarized statements from fellow troopers who were in the same platoon and were eye witnesses to his shrapnel wound. One of them, L____, was less than 10 feet from him and was wounded by the same rocket. He saw his wound and began calling for a medic. His records would confirm the event. Also the duty officer's log for that date details the entire action. It references eight personnel wounded in action, but erroneously lists only seven names. He was number eight. e. The VA examined the wound and supporting evidence and established a service connection to the wound. 4. The applicant was inducted into the Army of United States on 28 July 1969. He completed initial entry training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman). 5. His DA Form 20 (Enlisted Qualification Record) shows in: * item 31 (Foreign Service), he served in Vietnam from 5 February 1970 to 1 March 1971; * item 38 (Record of Assignments), he was assigned to Company A and Headquarters and Headquarters Company, 1st Battalion, 8th Cavalry Regiment, 1st Cavalry Division, from 17 February 1970 through 24 February 1971 * item 40 (Wounds), no entry indicating he was wounded or injured as a result of enemy action in the Republic of Vietnam * item 41 (Awards and Decorations), no an entry showing he was awarded the Purple Heart 6. His available records do not contain orders awarding him the Purple Heart or any documentation indicating he was treated for wounds or injuries he sustained as a result of enemy action during his service in Vietnam. 7. He was honorably released from active duty on 1 March 1971. His DD Form 214 does not show award of the Purple Heart. 8. The Vietnam casualty roster compiled by the Adjutant General's Office Casualty Division, a battle and non-battle listing of Soldiers who were killed, wounded, sick, captured, or missing during their service in Vietnam, does not list the applicant's name. 9. He provided the following supporting evidence: a. His self-authored document contains a photographic image of what he describes as a piece of "B40 rocket shrapnel" that was taken from his back after an engagement with enemy combat forces on 22 March 1970 in South Vietnam. b. The letter from the Chief, HRC Awards and Decorations Branch, to his Member of Congress, 19 March 2020, states HRC was unable to authorize award of the Purple Heart to the applicant. It noted that military medical documentation describing both diagnosis and treatment of the injury caused by the enemy immediately after or close to the incident date and signed or endorsed by a medical professional in accordance with regulatory guidance was required. The applicant he did not fulfill that requirement. The letter also noted the VA rating decision could not be used as the sole basis for the award. The applicant was instructed that he could appeal to this Board. c. The Staff Journal or Duty Officer's Log covering the period 22 March 1970 (pages 4-8 of 16) contains multiple entries stating Company A, 1st Battalion, 8th Cavalry Regiment, had enemy contact starting at 1205 hours by being engaged with organic and artillery fire. Company A initially had five Soldiers wounded in action, one seriously wounded and four lightly wounded. The status of the seriously wounded Soldier was changed to killed in action. Company A reported two more Soldiers were lightly wounded in action for a total of eight. The log lists the names of seven of the eight Soldiers wounded in action; the applicant's name is not listed. The log further notes the medical evacuation helicopter only picked up four of the eight wounded Soldiers and would not be returning to pick up the remaining four "routines." d. The statement from his platoon leader at the time, Second Lieutenant L____, states the applicant was wounded in the back by a rocket fragment while engaged in a firefight. One Soldier was killed and seven were wounded, including the applicant. A medical evacuation helicopter was only able to extract four of the wounded; the applicant was not one of them. The applicant was treated by their medic. The medic was later killed and his records were lost. He recommends awarding the applicant the Purple Heart. e. The statement from L____ describes the event in the same manner as the platoon leader. He states the applicant was right next to him and they were both wounded at the same time as a result of shrapnel coming down on them. He says he was wounded in the upper left thigh and the applicant was wounded in the back. He was medically evacuated, but the applicant was not. He was treated and was awarded a Purple Heart for his injury. f. Three additional eyewitness statements all describe the event in the same manner (see attachments). g. The physician letter states the applicant is his patient who has two chronic medical issues, which the applicant considers attached or associated with his military exposures. One is ongoing tinnitus, which is being treated by the VA, and the other is a chronic non-healing wound on his right abdominal wall. The applicant provided a piece of shrapnel, which was removed at the time of his combat service. The physician noted the shape and location was consistent with that type of injury. e. The VA Decision Review Officer Decision, 13 February 2020, states the applicant's right lower back residual scar from shrapnel injury was granted service connection with a 0-percent disability rating effective 11 April 2018. BOARD DISCUSSION: 1. 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. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. The criteria for award of the Purple Heart was not met. requires evidence of an injury or wound as a result of hostile action that must have required medical treatment and that such medical treatment is made a matter of official record. There was no military medical documentation describing the diagnosis and treatment of the injury caused by the enemy immediately after or close to the incident date and signed or endorsed by a medical professional. The applicant he did not fulfill that requirement. Board members further noted that the VA rating decision could not be used as the sole basis for the award. When the three elements required for the PH are unclear, other source documents are used. Here, the applicant's DA Form 20 does not reflect the PH, his name is not listed on the casualty roster, and nowhere in his records does it show he earned the PH. 3. Nevertheless, Board members accepted the platoon leader's statement, that the applicant likely received mild injury to back and fell between the cracks after medic was killed in action. Board members felt the applicant should be given the benefit of the doubt. Despite the preponderance of the evidence not his favor, Board members voted to grant relief. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX XX: XX: GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: In addition to the correction addressed in Administrative Note(s) below, the Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * Awarding him the Purple Heart for wounds received in action on 22 March 1970 in Vietnam * Adding the Purple Heart to his DD Form 214 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): The applicant is authorized administrative correction of his DD Form 214 for the period ending 1 March 1971 to show the following awards without Board action: * Vietnam Service Medal with three bronze service stars * Valorous Unit Award * Republic of Vietnam Gallantry Cross with Palm Unit Citation ? REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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 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. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. 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. 3. U.S. Army Vietnam Regulation 672-1 (Decorations and Awards), in effect at the time, governed theater awards during the Vietnam era and stated the authority to award the Purple Heart was delegated to hospital commanders. Further, it directed that all personnel treated and released within 24 hours would be awarded the Purple Heart by the organization to which the individual was assigned. Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam would be awarded the Purple Heart directly by the hospital commander rendering treatment. 4. Army Regulation 600-8-22 (Military Awards), currently in effect, prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. 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: * 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 the result of an act of any such enemy of opposing Armed Forces * as the result of an act of any hostile foreign force * 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 * 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 * service members who are killed or wounded in action by friendly fire * a former prisoner of war who was wounded before 25 April 1962 while held as a prisoner of war (or while being taken captive) * 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 5. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice in the Army rating. The Army rates only conditions determined to be physically unfitting at the time of discharge that disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army Physical Disability Evaluation System. 6. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam. This pamphlet shows the unit to which the applicant was assigned was awarded the: * Valorous Unit Award in Department of the Army General Orders Number 43, 1972 * Republic of Vietnam Gallantry Cross with Palm Unit Citation in Department of the Army General Orders Number 42, 1972 //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200009487 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1