MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 December 2002
         DOCKET NUMBER: AR2002068126

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Joyce Hall		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Ted S. Kanamine		Member
Mr. Conrad V. Meyer		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: Award of the Purple Heart.

APPLICANT STATES: In effect, that he was not awarded the Purple Heart. He contends that he suffered a bilateral hearing loss (busted right ear) by the concussion from a 122 mm rocket during an attack while serving in Vietnam.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant enlisted in the Regular Army on 28 June 1967. He served in
Vietnam from November 1968 to November 1969 as an airborne infantryman. He was honorably released from active duty on 26 June 1970. After a break in service, he reenlisted on 8 July 1971 and returned to Vietnam for 10 months
from August 1971 to June 1972. He had continuous service until he was permanently retired by reason of physical disability on 1 June 1979.

A DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 14 February 1979, shows the applicant was found unfit for further service by reason of right knee instability with chondromalacia patella; hearing impairment, existing prior to service, service aggravated; and hypertension.

This PEB also determined that the applicant’s retirement was based on disability resulting from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war. As a result, his DA Form 199 shows that an "x" was placed in item 10a indicating his disability was the result of armed conflict or caused by an instrumentality of war.

The applicant applied to the Army Board for Correction of Military Records (ABCMR) on 7 November 1986 to change item 10c of his DA Form 199 to show that his disability resulted from a combat injury as defined by Title 26, United States Code, Section 104 (26 U.S.C. 104).

The Physical Disability Agency (PDA) furnished the ABCMR with an advisory opinion, dated 6 April 1989. In this document, the PDA opined that item 10a of the applicant's DA Form 199 shows that he was retired based on disability resulting from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law. The PDA, therefore, determined that the applicant was already entitled to the benefit that he was seeking.

The PDA provided a continuation, dated 27 July 1989, to the original advisory opinion in the applicant's case. This opinion points out that the applicant left the service on a non-disability discharge. He subsequently reentered the Army in 1971 and had repeated knee injuries by falling on the ice and from parachute landings during the period 1977 to 1979. These injuries led to his disability discharge.
The 27 July 1989 advisory opinion also stated that, at the time of the applicant's entry into the Army, the audiograms indicated near normal hearing. The opinion also noted that it was not until 1978 and 1979 the applicant revealed that he had experienced auditory trauma from a rocket attack in Vietnam in 1972 and had subsequent loss of hearing and tinnitus.

In concluding the 27 July 1989 opinion, the Deputy Commander of the PDA noted that there were no medical records which showed the applicant sustained an acoustic trauma injury as a result of hostile action in Vietnam in 1972. However, the Deputy Commander of the PDA opined that acoustic damage could have occurred in Vietnam in 1972 and thus combat incurred aggravation requires that the "benefit of doubt" be given in the case. As a result, the PDA determined that the applicant's hearing loss was "combat related."

The applicant's DD Form 214 (Report of Separation from Active Duty) does not show the Purple Heart as an authorized award in item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized).

The applicant's DA Form 2-1 (Personnel Qualification Record) does not show in item 9 (Awards, Decorations and Campaigns) that he was awarded the Purple Heart.

The applicant’s service medical records were not among the records provided by the National Personnel Records Center to the ABCMR.

There are no orders available to the Board, which show that he was awarded the Purple Heart. There also is no evidence in the available records that shows he was wounded or treated for wounds as a result of hostile action.

Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained 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, and the medical treatment must have been made a matter of official record.

Title 26, United States Code, Section 104 states, in pertinent part, special rules for combat related injuries. Specifically, this provision of law defines the term "combat-related injury" as personal injury or sickness which is incurred as a direct result of armed conflict, while engaged in extrahazardous service, or under conditions simulating war; or which is caused by an instrumentality of war.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. The Board considered the applicant's request for award of the Purple Heart.

2. The Board noted the applicant's contention that he suffered a bilateral hearing loss by a 122 mm rocket during an attack while serving in Vietnam.

3. The Board noted the statements by the PDA and the statements by the ABCMR in Docket Number AC88-07647 that there is no medical evidence that the applicant was wounded or injured as a result of hostile action or treated for wounds resulting from hostile action.

4. The Board also noted that the PDA determined the applicant sustained service aggravation of his hearing condition while in Vietnam and determined that his hearing loss was combat related based on the "benefit of doubt."

5. This Board also noted that the ABCMR in Docket Number AC88-07647 on 6 September 1989 determined that the applicant's DA Form 199 should be amended to show in item 10c that his disability resulted from a combat related injury based on the same "benefit of doubt" stated in the PDA's advisory opinion.

6. The Board also noted that placing an "x" in item 10c of a DA Form 199 merely indicates that the service member sustained a "combat-related injury" which is defined as a personal injury or sickness which could have resulted from any of four causes: 1) a direct result of armed conflict, 2) while engaged in extrahazardous service, or 3) conditions simulating war; 4) or an instrumentality of war. The Board noted that indicating in item 10c that the service member's disability resulted from a "combat related injury" does not mean that he was wounded or injured as a result of hostile action and entitled to award of the Purple Heart.

7. Based on the foregoing the Board determined:

         a. That is no evidence in this case that the applicant was wounded or treated for wounds or injuries resulting from hostile action as he contends.

         b. The applicant's statement in 1978 and 1979 that he lost his hearing as a result of a 122 mm rocket attack in 1972 is not sufficient for award of the Purple Heart in view of the absence of corroborating medical evidence and in view of his previous ear conditions that could have been exacerbated by any number of "instrumentalities of war" which were not related to any hostile act by enemy forces.

         c. Therefore, there is insufficient evidence of wounds or injuries resulting from hostile action upon which to base award of the Purple Heart in this case.

d. A 10a and/or a 10c disability determination does not require wounds or injuries resulting directly from enemy action which would qualify for award of the Purple Heart. As a result, award of the Purple Heart does not automatically result from a 10a and/or a 10c determination that disability was based on a "direct result of armed conflict or caused by an instrumentality of war" or resulted from a "combat related injury as defined in 26 U.S.C. 104" unless there is specific medical evidence or other evidence of record which shows that the service member was wounded or injured as a result of hostile action.

         e. Therefore, the applicant is not entitled to award of the Purple Heart based on the decision of the PEB, the advisory opinions of the PDA and the decision by the ABCMR in Docket Number AC88-07647 on 6 September 1989, especially since these documents state that there is no evidence the applicant was wounded or injured as a result of hostile action.

8. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

9. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

_CLA ___ ___TSK _ ___CVM__ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002068126
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/12/10
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	107.0015
2.
3.
4.
5.
6.