RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  12 June 2007
	DOCKET NUMBER:  AR20060016993 


	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. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Ms. LaVerne M. Douglas

Chairperson

Mr. Edward E. Montgomery

Member

Ms. Rea M. Nuppenau

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, in effect, that his military medical records be corrected to show he was injured while serving in Vietnam. 

2.  The applicant states, in effect, that on 15 September 1967, while inspecting and clearing a moat around the district headquarters in Khe Sanh village in Vietnam, he tripped and fell on a punji stake and received a deep wound to his right calf.  He also states, in effect, that he was treated by the Advisory Team medic; however, his medical records were 40 miles away and, due to administrative error, the treatment was never recorded in his medical records.  The applicant further states, in effect, that he forgot about the injury until 2003 when he started getting cramps in the same area of his right leg that he injured in Vietnam.  The applicant concludes by stating he feels he is in a “Catch-22” situation because the Department of Veterans Affairs will not acknowledge his wound because it is not recorded in his military medical records.

3.  The applicant provides a self-authored statement, dated 21 October 2006, and a 2-page notarized Statement, dated 8 September 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 30 June 1995, the date he retired from active duty in the Army.  The application submitted in this case is dated 26 November 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 service records show that he was appointed as a commissioned officer in the U.S. Army and entered active duty on 9 June 1965.  Upon completion of the Officer Basic Course, the applicant was awarded specialty skill identifier (SSI) 12A (Armor, General) and detailed to the Armor Branch.


4.  The applicant's military service records contain a DA Form 2-1 (Personnel Qualification Record).  Item 5 (Oversea Service) of this document shows, in pertinent part, that he served in the Republic of Vietnam from 22 July 1967 through 20 July 1968.  His records also contain a copy of Item 18 (Record of Assignments) of his DA Form 66 (Officer Qualification Record), which shows, in pertinent part, he was assigned to the U.S. Military Assistance Command, Vietnam (MACV), from 27 July 1967 to 19 July 1968.   

5.  There is no evidence in the applicant’s military service records that shows he was wounded or treated for wounds as a result of hostile action.  His DA Form
2-1 does not show an entry in Item 4 (Assignment Considerations) documenting any wound, injury, medical condition or physical defect.  There are no orders in the applicant’s military service records which show that he was awarded the Purple Heart and Item 9 (Awards, Decorations and Campaigns) does not list the Purple Heart.  The applicant's name is not listed on The Adjutant General, Casualty Division's, Vietnam Casualty Roster.

6.  The applicant's military service records contain a Standard Form (SF) 88 (Report of Medical Examination), dated 16 March 1989, which was completed by the attending physician at the time of the applicant’s “Over 40” Physical Examination.  The Clinical Evaluation section, Item 37 (Lower Extremities), shows that the attending physician indicated the applicant’s lower extremities were “Normal.”  Item 74 (Summary of Defects and Diagnoses) contains two entries; one references Item 31 (Abdomen and Viscera) and reads, “31. Small reducible umbilical hernia” and the other references Item 40 (Skin, Lymphatics) and reads, “40. Sun injured skin.”  The SF 88 is absent any indication that the applicant sustained an injury to his right calf.  

7.  The applicant's military service records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 30 June 1995.  This document shows that the applicant was honorably retired from active duty on 30 June 1995 after completing a total of 30 years and 22 day active service.  Item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) does not show award of the Purple Heart.

8.  In support of his application, the applicant provides a statement from First Sergeant (1SG) James E. P____, Sr., U.S. Army, Retired, who served as the Advisory Team medic.  1SG P____ states, in effect, that the applicant was conducting a periodic inspection of a perimeter trench line containing punji stakes, which was a compulsory inspection to check for needed stake replacements.  He also states, in effect, the applicant lost his footing and slid into a punji stake, puncturing the lower area of the calf muscle of his right leg.  The former medic further states, in effect, that he cleaned the wound, stopped the bleeding, and applied an antibiotic ointment and dry sterile dressing to the wound site.  He also administered a tetanus toxoid shot and 1.2 million units of Bicillin as a preventative medicine precaution.  The former medic concludes by stating, in effect, “I did not have access to his medical records so nothing could be annotated.”

9.  Army Regulation 600-8-104, (Military Personnel Information Management/ Records), in effect at the time, prescribed the policies and operating tasks for the Military Personnel (MILPER) Information Management/Records Program of the Military Personnel System.  Chapter 5 (Enlisted MILPER Information Management/Records - PQR) of Army Regulation 600-8-104 states, in pertinent part, the DA Form 2-1 provides a formal and permanent record of personnel management qualifications.

10.  Table 5-2 (Instructions for Recording Entries on DA Form 2-1) of Army Regulation 600-8-104 provides the title, description, and instructions for entries on the DA Form 2-1.  The instructions for Item 4 (Assignment Considerations) state, in pertinent part, for wounds enter a brief description of the wound or injury received (including chemical, biological, or radiological injury); the wound or injury must have been received because of hostile or enemy action and resulted in medical treatment or hospitalization; and enter the date wounded or injured immediately following the description.  The instructions also provide, in pertinent part, for a medical condition or physical defect, enter a brief description of the condition or defect in layman’s language (and references SF 88, Item 74).  

11.  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 Army regulation also provides examples of injuries or wounds which clearly do not qualify for award of the Purple Heart and cites, in pertinent part, accidents involving explosive, aircraft, vehicular, and other accidental wounds or injuries not related to or caused by enemy action.

12.  Army Regulation 40-66 (Medical Record Administration and Health Care Documentation), in effect at the time, sets policies and procedures for the preparation, disposition, and use of Army medical records and other health care documentation.   Chapter 3 (Preparation of Medical Records), paragraph 3-4 (General), subparagraph f (Amendment to medical records), states, in pertinent part, that medical records will be amended according to Army Regulation 340-21, paragraph 2-10.

13.  Army Regulation 340-21 (The Army Privacy Program) sets forth policies and procedures that govern personal information kept by the Department of the Army in systems of records.  Paragraph 2-10 (Amendment of records) provides, in pertinent part, that consideration of a request for amendment would be appropriate if it can be shown that the document was not constructed in accordance with applicable record-keeping requirements prescribed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his military medical records should be corrected to show that he was injured while serving in Vietnam.

2.  The statement provided by the former medic in support of the applicant’s claim indicates that the applicant was conducting a periodic inspection of a perimeter trench line containing punji stakes in order to check for needed stake replacements.  The statement also indicates that the applicant lost his footing and slid into a punji stake, puncturing the lower area of the calf muscle of his right leg.  Thus, the statement shows that the applicant was not wounded or injured as a result of hostile action, but rather the applicant was accidentally injured not a result of hostile action.  The statement also indicates that the applicant’s injury was treated, but the medical treatment was not made a matter of official record at the time.  Therefore, the evidence provided fails to support the criteria for award of the Purple Heart (i.e., a wound sustained while in action against an enemy or as a result of hostile action, 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).

3.  The former medic’s statement acknowledges the medical treatment was not made a matter of official record.  In addition, the evidence of record shows that the applicant failed to make mention of the injury during his routine physical examination in March 1989, nor did the attending physician make note of any scar on the applicant’s lower extremities at that time.  Moreover, the evidence of record fails to show that the applicant ever made mention of the injury at anytime throughout the nearly 28 years following the incident in order to have the injury documented in his medical records.  Therefore, notwithstanding the statement by the former medic, the applicant provides insufficient evidence in support of his claim to have his medical records amended.

4.  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.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 June 1995; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
29 June 1998.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___LMD__  ___EEM_  ___RMN_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




____LaVerne M. Douglas____
          CHAIRPERSON



INDEX

CASE ID
AR20060016993
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/06/12
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19950630
DISCHARGE AUTHORITY
AR 635-100, Paragraph 4-14
DISCHARGE REASON
Sufficient Service for Retirement
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
108.0700.0000
2.

3.

4.

5.

6.