RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 May 2008
	DOCKET NUMBER:  AR20080000416 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Air Assault Badge, the Long Range Reconnaissance Platoon (LRRP) Badge (Tab), the Purple Heart, and any other citations to which he is entitled.  

2.  The applicant states, in effect, that he has provided documentation to show he was awarded the Air Assault Badge and the LRRP Tab by the Commanding General of the 101st Airborne Division.  He states that he also has provided documentation which shows the following:  (1) he was treated for a concussion at the 67th Evacuation Hospital in Vietnam on 3 August 1970; (2) he received medical treatment in Germany in 1971 for injuries that occurred in Vietnam; and 
(3) he was referred to a Department of Veterans Affairs (DVA) Neurologist.  In addition, he states that the DVA Rating Decision shows he was granted 50 percent bilateral hearing loss compensation in conjunction with a 10 percent compensation for tinnitus among other Vietnam related injuries.  He alleges, in effect, that these injuries are directly related to the concussion he sustained as a result of enemy generated explosions.  

3.  The applicant provides a copy of his DD Form 214; his DD Form 215 (Correction to DD Form 214), dated 1 October 2007; an email, dated 10 July 2007; Purple Heart criteria; a letter, dated 19 July 1971, from a squadron surgeon; a letter, dated 18 January 2007, from the DVA Regional Office, Boston, Massachusetts; a personal letter, dated 12 July 2007; Air Assault Badge criteria; a request for awards from his former commanding officer; a letter, dated 19 November 2007; a personal letter, dated 21 August 2007; his Standard Form 507 (Clinical Record); his DVA Rating Decision, dated 28 December 2005; a DVA Rating Decision, dated 22 August 2007; and a Certificate of Service.  

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 enlisted in the Regular Army on 31 January 1969 for a period of three years.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 11B (light weapons infantryman).  

3.  His DA Form 20 (Enlisted Qualification Record) shows he was assigned to the 444th Transportation Company in Vietnam in December 1969.  He was promoted to specialist four on 3 May 1970.

4.  His DA Form 20 shows he was reassigned to Company E, 1st Battalion (Airmobile), 502nd Infantry as a rifleman with a LRRP Team on 2 June 1970.

5.  In an undated memorandum, the commanding officer requested that the applicant be awarded the Combat Infantryman Badge, the Army Commendation Medal, the Air Medal, the Bronze Star Medal, and the LRRP Tab.

6.  There are no orders in the applicant's personnel records which show he was awarded the Purple Heart.  His DA Form 20 (Enlisted Qualification Record) does not list any wounds as a result of hostile action in item 40 (Wounds).  His name is not included on the Vietnam Casualty Roster.  

7.  A Consultation Sheet shows the applicant was treated at the 67th Evacuation Hospital on 3 August 1970 for tinnitus [a sensation of noise or ringing in the ears].

8.  A DA Form 3354-R (Personal Data Sheet) in the applicant’s personnel records show he graduated from the Reconnaissance School, the Prior Overseas Replacement Training, the Light Vehicle Drivers Course, and the Leadership Academy.  This data sheet does not indicate he completed an air assault training course.  

9.  The applicant’s DA Form 20 does not list an air assault training course in Block 27 (Military Education).

10.  Item 41 (Awards and Decorations) on the applicant’s DA Form 20 lists the LRRP Tab but no authority is listed.  The Military Awards regulation does not list the LRRP Badge or the LRRP Tab as an authorized award.  

11.  In a 19 July 1971 letter, a Squadron Surgeon recommended the applicant be considered for a change in MOS to one in which he would be subject to less mental and emotional stress and loud noise.  The letter indicated the applicant had medical profiles in his hearing and neuropsychiatric areas which were prohibitive to functioning in his MOS.  
12.  He served in Germany from January 1971 through October 1971.

13.  The applicant was released from active duty on 14 March 1972.  His DD Form 214 shows the National Defense Service Medal, the Bronze Star Medal, the Combat Infantryman Badge, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Ranger Tab, the Expert Marksmanship Qualification Badge with Rifle Bar, and two Overseas Bars as authorized awards. 

14.  A Clinical Record shows the applicant received a special neurological examination on 25 June 1973.  The history of his condition indicated he sustained a head injury as a result of a mortar explosion in Vietnam in July 1970. He was unconscious for two hours but he spent less than 24 hours in a hospital.  The applicant noted constant tinnitus in both ears like the sound of an air conditioner and constant feelings of pressure in both temples.  In the conclusions, the examining physician indicated “status post head injury with concussion without apparent neurologic residuals.”

15.  The DVA Rating Decision, dated, 28 December 2005, shows the applicant’s evaluation of bilateral hearing loss was increased from zero percent to fifty percent effective 30 June 2005.  His evaluation of Post Traumatic Stress Disorder (PTSD) of 50 percent rating, tinnitus of 10 percent rating, and post operative left renal calculus, residuals of zero percent disability rating were continued.

16.  A DVA Rating Decision, dated 22 August 2007, shows the applicant’s evaluation of residuals, post operative left renal calculus was increased from zero percent disabling to 30 percent disability rating.

17.  A DD Form 215, dated 1 October 2007, added award of the Air Medal, the Army Commendation Medal, the Vietnam Service Medal with three bronze service stars, the Meritorious Unit Commendation, the Republic of Vietnam Gallantry Cross with Palm Unit Citation Badge, the Expert Qualification Badge with Rifle, Auto Rifle, and Hand Grenade Bars to his DD Form 214.

18.  In an 8 January 2007 letter, the DVA indicates the applicant was in receipt of a monthly service connected compensation benefit payable at the 100 percent disability rate.

19.  Army Regulation 600-8-22 (Military Awards) 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, and the medical treatment must have been made a matter of official record.  Paragraph 2-8b(2) states that for the purpose of considering an award of the Purple Heart, a “wound” is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.  The regulation states that the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.  

20.  Army Regulation 600-8-22, in pertinent part, sets forth requirements for award of the Air Assault Badge.  Award of the Air Assault Badge requires that an individual must have satisfactorily completed an air assault training course according to the U.S. Army Training and Doctrine Command standardized Air Assault Core Program of Instruction, or completed the standard Air Assault Course while assigned or attached to the 101st Airborne Division (Air Assault) after 1 April 1974.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record which shows the applicant completed an air assault training course.  Therefore, he has not met the requirements for award of the Air Assault Badge.

2.  The applicant's request for correction of his records to show the LRRP Badge (Tab) is noted.  However, the evidence he provided was only a request, not an approval.  In addition, the Military Awards regulation does not list the LRRP Badge or LRRP Tab as an authorized award.  Therefore, there is no basis for recording this badge on the applicant's DD Form 214.

3.  There are no orders which authorize award of the Purple Heart to the applicant.  His name is not listed on the Vietnam Casualty Roster.

4.  Although the 28 December 2005 DVA Rating Decision indicates that the applicant was granted disability ratings for bilateral hearing loss, PTSD, tinnitus, and post operative left renal calculus, there are no military medical documents available to the Board which verifies he was wounded or injured as a result of hostile action or treated by military medical personnel.  Therefore, there is insufficient evidence on which to base award of the Purple Heart in this case.

5.  There is no evidence of record which indicates the applicant is entitled to any additional awards.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

XX_____  XX______  XX______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




      ________XX______
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080000416


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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