MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 25 March 2003
         DOCKET NUMBER: AR2002082187

         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
Mr. William Blakely		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Melvin H. Meyer		Member
Mr. John T. Meixell		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)

APPLICANT REQUESTS: Reconsideration of his request for award of the Purple Heart (PH).

APPLICANT STATES: In effect, he is providing newly discovered relevant evidence that supports his claim of entitlement to the PH. He claims that the material enclosed will show the time date and events that led to his being seriously wounded in the Republic of Vietnam (RVN) in December 1967. He states that as a result of the explosion of a mortar round, he suffered bleeding and hearing loss in his left ear. He states that he was attacked while on guard duty in a 100 foot tower. He fell from the tower and suffered serious injuries to his right leg, hip, and chest. He claims that this was a traumatic event and he remembers waking up in a hole with his buddy in his arms.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records that were summarized in ABCMR Proceedings (AR2002069818), dated 13 June 2002, which were prepared to reflect the Board’s original consideration of this case.

The applicant submits the following documents in support of his reconsideration request; Chronological Records of Medical Care (SF 600); Medical Condition - Physical Profile Record (DA Form 8-274); Report of Medical Examination (SF 88); Consultation Sheet (SF 513); Audiologic Evaluation (VA Form 10-2364); Department of Veterans Affairs Rating Decision (VA Form 6796c) and associated medical documents. These documents are considered a submission of new evidence that requires reconsideration by the Board.

The SF 600s provided chronicle the applicant’s medical treatment between 3 February 1967 and 10 February 1968. An entry dated 26 December 1967, indicated that while the applicant was on an ambush in silent surroundings, he experienced a sudden ringing in his ear, which was followed by a loss of hearing. No entries in these medical treatment records document an injury or wound received as a result of action by a hostile force.

The SF 513, dated 26 December 1967, provided by the applicant indicates that the applicant suffered from decreased hearing in his left ear since childhood, and he had more difficulty hearing recently after being around high noise levels. The DA Form 8-274, dated 26 December 1967, confirms that the applicant was issued a temporary three (T3) profile due to a severe hearing loss in the left ear on that date. However, neither of these documents indicate that the hearing loss experienced by the applicant was the direct result of combat action.
The SF 88, dated 20 January 1969, documents the separation medical examination taken by the applicant during his separation processing. It confirms that he suffered nerve damage in his left ear; however, it does not indicate when, where, and under what circumstances he suffered this injury.
Department of Veterans Affairs (VA) Rating Decision dated 20 April 1994, awarded the applicant a service connected disability for a hearing loss in his left ear. However, this rating decision contains no confirmation that his hearing loss was received as a result of combat action. The VA 10-2364, comments that the applicant reported a hearing loss in his left ear as a result of an explosion during combat in Vietnam. Also, the applicant’s hearing in his right ear is within normal limits but a profound hearing loss was present in the left ear. Hearing aids were not recommended.

On 13 June 2002, this Board concluded that the evidence of record and the applicant failed to provide evidence to show he was wounded or treated for wounds due to hostile action in the RVN. The Board determined that there was insufficient evidence on which to base award of the PH.

Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual military awards. Paragraph 2-8 contains guidance on awarding the PH. It states, in pertinent part, that the PH is authorized to members who are wounded in action. A wound is defined as an injury to any part of the body from an outside force or agent sustained in action. The wound for which a PH is being awarded must have required treatment by a medical officer, and the records of medical treatment for the wound or injury for which the PH is being awarded must have been made a matter of official record. Paragraph 2-8b(4) provides examples of enemy related injuries which clearly justify award of the PH and it not does not include hearing loss as a result of being exposed to loud noises.

Army Regulation 15-185 sets forth the policy and procedures for the Board. It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

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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 carefully considered the new evidence submitted by the applicant and notes his contention that he should be awarded the PH for the ear injury he suffered while serving in the RVN. However, it finds the evidence provided does not satisfy the regulatory burden of proof necessary to support award of the PH.

2. The new evidence provided by the applicant confirms that he suffered from a loss of hearing in his left ear while serving in the RVN. However, the specific record of treatment does not indicate that the ear injury was the direct result of enemy action. Instead, it shows that he suffered the hearing loss on
26 December 1967, while he was on an ambush in silent surroundings.

3. The applicant is advised that the veracity of his claim that he was injured in the RVN is not in question. However, the evidence he has provided is not sufficient to alter the original findings of the Board and grant him the requested relief. This decision is based solely on the lack of evidence showing that he was ever wounded or injured in action, and it is taken in the interest of all those who served in the RVN and faced similar circumstances.

4. In the opinion of the Board, since the applicant was treated for his injury by military medical personnel, had there been sufficient medical evidence to support his receiving the PH, it would have been recommended at the time of his treatment. Thus, while the Board wishes to commend the applicant on his exemplary service in defense of his country, it is compelled to deny the requested PH.

5. In view of the facts of this case, the Board concludes that the overall merits of the case, including the latest submission and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

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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

__JNS__ __ MHM _ __ JTM __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002082187
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/03/25
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.