RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 February 2007
	DOCKET NUMBER:  AR20060009947 


	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.


Mr. Carl W. S. Chun

Director

Ms. Anita McKim-Spilker

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Edward E. Montgomery

Member

	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 states, in effect, that he was wounded (puncture of both eardrums) on 8 October 1965 in the Republic of Vietnam when a mine, suspended in an overhanging tree, detonated over a truck two vehicles in front of his jeep.  He contends that the unit commander requested that he wait until their return to base camp before seeking medical aid.  He saw the battalion surgeon on 14 October 1965, who sent him to the hospital at Clark Air Force Base in the Philippines for treatment of his eardrum punctures.  He then received further treatment and evaluation in Okinawa and, when healed, returned to his unit in the Republic of Vietnam.  Earlier this year, he discovered that he did not have to sustain an injury causing a physical lesion to be eligible for award of the Purple Heart.

3.  The applicant provides excerpts of his service medical records showing treatment for his ear condition in October and November 1965.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 28 January 1966, the date of his release from active duty.  The application submitted in this case is dated 4 July 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 evidence of record shows the applicant was appointed in the U.S. Army Reserve as an infantry second lieutenant on 21 December 1963.  He entered active duty on 28 January 1964.  He attained the rank of first lieutenant and was honorably released from active duty on 29 January 1966.

4.  The applicant served in the Republic of Vietnam from 25 June 1965 through 20 January 1966.  He performed duties as an infantry platoon leader with Company B, 18th Infantry Regiment, 1st Infantry Division.
5.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 does not show award of the Purple Heart.  Item 27 (Wounds Received as a Result of Action with Enemy Forces) shows "NONE."  The applicant authenticated his DD Form 214 with his signature.

6.  There are no medical records in the available military personnel file that show the applicant sustained wounds as a result of hostile action or that show he was treated for wounds sustained as a result of hostile action.  The medical evidence submitted by the applicant shows that on 14 October 1965 the battalion surgeon referred him for consultation with a "history of ear pain and repeated infections since childhood.  Recently since coming to damp climate has had more problems with ear pain.”  However, the examiner indicated that the applicant reported "the onset of deafness in the right ear approximately two months ago after a mission in which he was exposed to a loud noise from the 106mm mortar.  Progressively worse with middle ear pain."  

7.  The applicant received follow-up treatment on 2 and 13 November 1965.  The examiner indicated that the applicant was treated for chronic otitis and his impression was the applicant suffered from an allergic condition of the canal walls.   

8.  There are no general orders in the applicant’s records to show he was awarded the Purple Heart.

9.  The applicant's name does not appear on the Vietnam Casualty Roster.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.  This regulation further states that there is no time limit on submission of requests for award of the Purple Heart.

11.  Review of the applicant's record indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

12.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the applicant is entitled to award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 21, dated 1969; and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation based on Department of the Army General Orders Number 53, dated 1970. 

13.  The applicant's records show he was awarded the Vietnam Service Medal.  However, his DD Form 214 does not show any bronze service stars indicating campaign credit.  His records indicate he participated in the Vietnam Defense and the Vietnam Counteroffensive campaigns.   

14.  Appendix B of Army Regulation 600-8-22 shows that the applicant participated in two campaigns during his tour of duty in Vietnam.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests award of the Purple Heart.

2.  There are no orders in the applicant's record to show award of the Purple Heart.  The applicant's discharge document is silent on wounds received in action.  

3.  There are no medical records in the available military personnel file that show the applicant sustained wounds as a result of hostile action or that show he was treated for wounds sustained as a result of hostile action.  His service medical records do show that he reported for treatment for an ear condition, ultimately diagnosed as chronic otitis.  The applicant reported a childhood history of ear pain and infections.  Further, the applicant indicated on 14 October 1965 that the onset of his ear condition (reported as deafness) commenced two months prior to his visit due to a loud noise.  As such, the applicant implied that he was exposed to loud noise in/or about August 1965, two months prior to his present claim for a Purple Heart injury to his ears on 8 October 1965.   

4.  In order to be awarded the Purple Heart, the applicant must show evidence that his alleged wounds or injuries were sustained as a result of hostile action or show that he was treated for wounds sustained as a result of hostile action.  His service medical records do not show his ear drums were punctured as a result of an injury sustained as a result of hostile action.  Therefore, there is insufficient evidence upon which to grant the applicant's request.



5.  General Orders awarded the applicant's unit the Republic of Vietnam Gallantry Cross With Palm Unit Citation which is not shown on his DD Form 214. Therefore, he is entitled to have his records corrected to show this foreign unit award.

6.  General Orders awarded the applicant's unit the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation which is not shown on his DD Form 214.  Therefore, he is entitled to have his records corrected to show this foreign unit award.

7.  Evidence of record shows that the applicant participated in two campaigns during his service in Vietnam.  Therefore, he is eligible for award of two bronze service stars to be affixed on his Vietnam Service Medal. 

8.  Evidence shows the applicant should have discovered the alleged error or injustice now under consideration on 29 January 1966, therefore, the time for the applicant to file a request for correction of any error or injustice expired on
28 January 1969.  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 there is no statute of limitations on requests for award of the Purple Heart.

9.  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 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jea___  __jlp___  __eem___  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

1.  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 to show award of the Purple Heart.

2.  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 award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and two bronze service stars to be affixed to the Vietnam Service Medal.



							James E. Anderholm
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060009947
SUFFIX

RECON

DATE BOARDED
20070206
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
107.0015
2.
107.0094
3.
107.0095
4.

5.

6.