RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 February 2007
	DOCKET NUMBER:  AR20060009505 


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




	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests award of the Purple Heart. 

2.  The applicant essentially states that his medical records clearly indicate an injury sustained on 22 December 1967 while he was serving in Vietnam.  It was determined and noted that the injury occurred in the line of duty. 

3.  The applicant provides a letter from the United States Army and Joint Services Records Research Center in Alexandria, Virginia; a letter from the National Personnel Records Center in St. Louis, Missouri; and extracts of his medical records in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 31 July 1992, the date of his retirement from the Regular Army.  The application submitted in this case is dated 24 June 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s military records show that he enlisted in the Regular Army on 21 April 1966.  He completed basic and advanced individual training and was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).  He was then assigned to Fort Bragg, North Carolina after he completed the Basic Airborne Course at Fort Benning, Georgia.  He departed for the Republic of Vietnam on 21 June 1967, and primarily served with Headquarters and Headquarters Company, 1st Battalion (Airborne), 327th Infantry Regiment, 101st Airborne Division.  He suffered a perforated tympanic membrane [eardrum] on 
22 December 1967, and departed Vietnam on 12 January 1968.  He was then a patient at the 106th General Hospital in Japan, then he was moved to Walter Reed General Hospital in Washington, D.C.  After being released from Walter Reed General Hospital, he served tours at Fort Bragg, North Carolina and Germany.  In November 1969, he was assigned to a Medical Holding Company in Tacoma, Washington.  In February 1970, he was reassigned back to Fort Bragg, North Carolina.  He returned to Vietnam on 16 May 1971, and served with Company A, 2nd Battalion (Airborne), 503rd Infantry Regiment, 173rd Airborne Brigade.  This unit made a permanent change of station to Fort Campbell, Kentucky on 17 July 1971.  He served in Italy from October 1973 to October 1975.  He again returned to Fort Bragg, North Carolina, and served there from October 1975 to August 1986.  He served a tour in Panama from September 1986 to September 1988, then returned to Fort Bragg, North Carolina.  He deployed to Southwest Asia in support of Operations DESERT SHIELD and DESERT STORM from 13 August 1990 to 17 March 1991.  On 31 July 1992, he was honorably released from active duty, and on 1 August 1992, placed on the Retired List.  The DD Form 214 (Certificate of Release or Discharge From Active Duty) that he was issued at the time of his retirement showed that he was awarded the Meritorious Service Medal with Third Oak Leaf Cluster, the Army Commendation Medal with Second Oak Leaf Cluster, the Army Achievement Medal with Second Oak Leaf Cluster, the 8th Award of the Good Conduct Medal, the National Defense Service Medal with One Bronze Service Star, the Vietnam Service Medal with Three Bronze Service Stars, the Republic of Vietnam Campaign Medal, the Southwest Asia Service Medal with Two Bronze Service Stars, the Noncommissioned Officer Professional Development Ribbon with Numeral 3 Device, the Army Service Ribbon, the Overseas Service Ribbon, the Combat Infantryman Badge, the basic Parachutist Badge, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Kuwait Liberation Medal awarded by the Kingdom of Saudi Arabia.

4.  Item 13 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 does not show that he was awarded the Purple Heart.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 (Enlisted Qualification Record) and Item 9 (Awards, Decorations, and Campaigns) of the applicant’s DA Form 2-1 (Personnel Qualification Record – Part II) also do not show that he was awarded the Purple Heart.  Item 40 (Wounds) of the applicant’s DA Form 20 and Item 4 (Assignment Considerations) of the applicant’s DA Form 2-1 do not contain any entries which show that he was wounded or injured as a result of hostile action. There are no general orders in the applicant’s records awarding him the Purple Heart.  Additionally, the applicant’s name is not listed on the Vietnam Casualty Roster.

5.  The applicant provided extracts of his medical records that essentially show that his right eardrum was perforated on 22 December 1967 by a blast injury due to an explosion.  These extracts state that the injury occurred in the line of duty; however, none of the medical extracts provided by the applicant conclusively state that the explosion which caused his eardrum injury was the result of hostile action, or that it was generated by the enemy.  It should be noted that the classification that his injury occurred in the line of duty simply means that the applicant was not willfully negligent at the time of his injury, and that his injury was not caused by his own intentional misconduct.

6.  It was noted that there was no evidence in the applicant’s Official Military Personnel File (OMPF) that he ever requested award of the Purple Heart while on active duty.

7.  During a review of the applicant’s records, it was determined that he is entitled to additional awards and decorations that are not shown on his DD Form 214.

8.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This document shows that, at the time of the applicant’s assignment to the 101st Airborne Division in Vietnam, the division was cited for award of the Meritorious Unit Commendation by Department of the Army General Orders Number 37, dated 1970.  

9.  The applicant’s DD Form 214 shows that he was awarded the Kuwait Liberation Medal awarded by the Kingdom of Saudi Arabia; however, it does not show that he was awarded the Kuwait Liberation Medal awarded by the Government of Kuwait. 

10.  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 a result of hostile action, that the wound must have required treatment by a medical officer, and that the medical treatment was made a matter of official record.  Examples of enemy-related injuries which clearly justify award of the Purple Heart would be concussion injuries caused as a result of enemy generated explosions.  This regulation also provides that there are no time limitations on requests for award of the Purple Heart.

11.  Army Regulation 600-8-22 also provides, in pertinent part, that the Kuwait Liberation Medal awarded by the Government of Kuwait was approved on 
9 November 1995 and is awarded to members of the Armed Forces of the United States who participated in the Persian Gulf War between 2 August 1990 and 
31 August 1993.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart.  

2.  The fact that the applicant sustained a perforated eardrum from an explosion while serving in Vietnam is not disputed; however, there is no evidence that the explosion which caused his injury was a result of hostile action, or that the explosion was generated by the enemy.  The fact that there is no evidence in the applicant’s OMPF that he ever requested award of the Purple Heart while on active duty was noted.  It is not known why the applicant would not have requested the Purple Heart immediately after this injury had he felt he was entitled to it, because had he received the Purple Heart while on active duty shortly after his injury, it very well could have improved his promotion potential across the remainder of his Army career.

3.  Regrettably, absent evidence which conclusively shows that his perforated eardrum was the result of hostile action, or that the explosion was generated by the enemy, there is insufficient basis for awarding the Purple Heart to the applicant in this case.  

4.  General orders awarded the Meritorious Unit Commendation to the 101st Airborne Division while the applicant was assigned to the division.  Therefore, he is entitled to award of the Meritorious Unit Commendation, and correction of his military records to show this unit award.

5.  The applicant served in the Persian Gulf War during a qualifying period of service for award of the Kuwait Liberation Medal awarded by the Government of Kuwait.  Therefore, he is entitled to award of the Kuwait Liberation Medal awarded by the Government of Kuwait, and correction of his military records to show this award.

6.  Evidence shows that the applicant’s records contain administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 3 of the BOARD DETERMINATION/RECOMMENDATION section below.

7.  Records show the applicant should have discovered the alleged error now under consideration on 31 July 1992; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 July 1995.  Although the applicant did not file within the ABCMR's statute of limitations, it is appropriate to waive failure to timely file based on the fact that there are no time limitations on requests for award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___MM__  __JM____  ___QS__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that it was appropriate to waive failure to timely file in this case.

2.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

3.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show the award of the Meritorious Unit Commendation and the Kuwait Liberation Medal awarded by the Government of Kuwait. 

4.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by him in service to the United States during Vietnam, the Persian Gulf War, and throughout his 26-year Army career.  The applicant and all Americans should be justifiably proud of his service in arms.




_____ Mark Manning________
          CHAIRPERSON


INDEX

CASE ID
AR20060009505
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070222
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY WITH ADMIN NOTE
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
107.0015.0000
2.
107.0034.0000
3.
107.0089.0000
4.
110.0400.0000
5.

6.