RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 September 2007
	DOCKET NUMBER:  AR20070007382 


	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.  


Ms. Catherine C. Mitrano

Director

Ms. Jeanne Marie Rowan

Analyst


The following members, a quorum, were present:


Mr. Richard Dunbar

Chairperson

Mr. Chester Damian

Member

Mr. Edward 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, in effect, the award of the Purple Heart.

2.  The applicant states, in effect, that he was assigned to the 146th Aviation Company in Long Thanh (Republic of Vietnam).  He states that he was injured on 8 August 1972 when he was hit by a 122 mm rocket and that he received medical treatment from the 197th Medical Detachment for minor cuts and bruises.  He has a claim for hearing loss through the Department of Veterans Affairs (DVA). 

3.  The applicant provides copies of his DD Form 214 (Report of Separation from Active Duty) with a separation date of 29 July 1974, excerpts from his military medical records, and his Department of Veterans Affairs Claims Assistance Act (VCAA) worksheets dated 1 March 2007.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show he enlisted on 30 July 1971 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 67B (Airplane Repairman).  The highest rank he attained while serving on active duty was specialist four/pay grade E4.

3.  The applicant was assigned to the 146th Aviation Company in the Republic of Vietnam during the period 24 February 1972 to 11 February 1973.

4.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not contain any entries indicating that the applicant received any wounds.  
5.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not show the award of the Purple Heart.

6.  On 29 July 1974, the applicant was released from active duty due to the expiration of his term of service.  He had completed 3 years of net active service that was characterized as honorable.  He was transferred to the United States Army Reserve Control Group (Reinforcement).

7.  Item 26 (Decorations, Medal, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 with an effective date of 29 July 1974, which he authenticated in his own handwriting, does not show the award of the Purple Heart. 

8.  There are no general orders in the applicant's military service records awarding him the Purple Heart.

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

10.  The applicant provided a copy of SF Form 600 (Chronological Record of Medical Care) which shows members of the 197th Medical Detachment examined him on 8 August 1972 in the Republic of Vietnam.  The examining doctor wrote that the applicant reported he had ear pain in both ears after being near a 122 mm rocket blast, which occurred on or about 7 August 1972.  The doctor's examination concluded that there were no apparent abnormalities in the tympanic membranes (eardrum) and that both were intact.  The applicant reported no tinnitus (ringing) in his ears.  The doctor's disposition was the applicant should return for a hearing test at the applicant's convenience.  The doctor's final disposition was probable acoustic trauma.  

11.  The applicant provided a copy of his VACC Checklist for Development dated 1 March 2007, which shows that he contends that he has bilateral hearing loss and bilateral tinnitus.  

12.  The applicant's records show that he is entitled to an additional award, which he did not request and is not listed on his DD Form 214.

13.  Department of the Army Pamphlet 672-3 shows that all units assigned in Vietnam from 8 February 1962 through 28 March 1973 were awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation, based on Department of the Army General Order Number 8, dated 1974.

14.  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 by military medical personnel, and the medical treatment must have been made a matter of official record.  A wound is defined as an injury to any part of the body from an outside force or agent sustained as a result of hostile action.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant sought medical treatment for tinnitus (ringing) in his ears while serving in the Republic of Vietnam.  He was examined by a medical doctor for tinnitus (ringing) in his ears after being in the vicinity of a 120 mm rocket blast.  The doctor's diagnosis was probable acoustic trauma, with no physical evidence that the applicant's tympanic membranes were ruptured or damaged because of the blast.  Therefore, there is no defined wound or injury.  There also is no evidence to show that the explosion was the result of enemy action or enemy direct fire.  Therefore, there is insufficient evidence upon which to base award of the Purple Heart in this case.

2.  The applicant served in Vietnam during the period when all units assigned in Vietnam were awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, he is entitled to the Republic of Vietnam Gallantry Cross with Palm Unit Citation

3.  Evidence shows that the applicant’s records contain administrative errors, which do 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

__RD  ___  __CD___  ___EM __  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 of the individual concerned.

2.  The Board determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned 
by amending his DD Form 214, with a separation effective date of 29 July 1974, 
to show he was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation.




_____Richard Dunbar________
          CHAIRPERSON




INDEX

CASE ID
AR20070007382
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070927
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY W/NOTE
REVIEW AUTHORITY

ISSUES         1.
107.0015
2.

3.

4.

5.

6.