IN THE CASE OF:	  

		BOARD DATE:	    22 February 2011

		DOCKET NUMBER:  AR20100020430 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests to be awarded the Purple Heart.

2.  The applicant states when the tracked vehicle he was on hit a booby trap, the explosion caused a ringing in his ears.

3.  The applicant provides a Department of Veterans Affairs (VA) rating decision, a statement from a civilian physician, a letter from the National Personnel Records Center, a VA Form 4138 (Statement in Support of Claim), and an article from The American Legion Magazine.

CONSIDERATION OF EVIDENCE:

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 Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show he enlisted in the Regular Army on       12 September 1969, was awarded the military occupational specialty of general vehicle repairman, served in Vietnam from 30 April 1970 to 4 April 1971, and was promoted to pay grade E-5.

3.  He was honorably released from active duty on 7 April 1972.

4.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) is blank.  There is no evidence the applicant was awarded the Purple Heart.

5.  The applicant's name is not shown on the Vietnam casualty roster.

6.  The VA rating decision provided by the applicant states that a civilian doctor believes that noise exposure in Vietnam is a significant contributing factor to his hearing loss.  However, the physician performing the VA examination states that his hearing loss is less likely as not caused by or a result of noise exposure on active duty based on a comparison between the applicant's hearing at induction and that at separation.  However, the VA resolved reasonable doubt in the applicant's favor and granted him a disability rating for tinnitus.

7.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for wounds sustained 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.

DISCUSSION AND CONCLUSIONS:

1.  There is no record of the applicant being treated for ringing in his ears due to a booby trap explosion.

2.  While a civilian physician stated the applicant's hearing loss was due to noise exposure in Vietnam, the VA physician opined that noise exposure in Vietnam probably did not cause hearing loss based on his hearing at the time of enlistment.

3.  Without evidence that the applicant was wounded as a result of hostile action, there is insufficient basis to grant his request.


BOARD VOTE:

________  ________  ________  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.



      __________ X___________
                 CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20100020430



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ABCMR Record of Proceedings (cont)                                         AR20100020430



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