RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2008
	DOCKET NUMBER:  AR20080001782 


	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 reconsideration of his earlier request for award of the Purple Heart.

2.  The applicant states that the Board’s decision indicated he was retired because of the injury that he sustained in Ranger School in June 1968.  However, that injury occurred before he was sent to Vietnam, where he served for three months until he sustained a second injury during a combat mission.  He questions why, if the injury that he sustained in Ranger School was the basis for his retirement, was he sent to Vietnam?  It is a reasonable inference to conclude that he had sufficiently recovered from his Ranger School injury to warrant his being sent to Vietnam and that the injury he sustained in Vietnam, not the injury in Ranger School, was the basis for his medical retirement.

3.  The applicant states that the Board concedes there were administrative errors in his record and that he should have been awarded 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 for wear on his already-awarded Vietnam Service Medal.  His records also reflect that he qualified as an expert with the M-16 rifle but that, too, is omitted from his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  He should have been placed on the Vietnam Casualty Roster, and because of that harmful error he is being denied his just reward.  He has been trying to obtain copies of his military medical records but has been unable to do so.  His records are presently located with the Department of Veterans Affairs (DVA) Appeals Management Center, but he will not be able to have access until a pending appeal is decided.  Of course, he does not know if those records contain his medical records from the hospital in Saigon, but even so he should not be made to suffer for someone else’s inadvertent error.  

4.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060011080 on 21 February 2007.


2.  The applicant provides new arguments that will be considered by the Board.

3.  The applicant was commissioned and entered active duty on 9 February 1968 as a second lieutenant. 

4.  In June 1968, the applicant injured his back from a fall during Ranger training. A Narrative Summary noted that he had sudden onset of low back pain as a result of the injury.  He made a gradual but steady recovery with the remainder   of his leg pain resolving although there was still some residual pain at the time   of the Medical Evaluation Board (MEB).  An MEB diagnosed him with spondylolisthesis and found him unfit for duty.  He was referred to a Physical Evaluation Board (PEB).  The PEB noted that the governing regulation stipulated that there should be continuing symptoms, more than mild, documented objectively on repeated outpatient visits or hospitalizations.  The applicant could function with profile limitations.  The PEB found him fit for duty on 9 September 1968.

5.  The applicant arrived in Vietnam on 30 December 1968.  He served as a platoon leader assigned to Company D, 4th Battalion, 12th Infantry of the 199th Infantry Brigade in Vietnam from 2 January 1969 until he was evacuated to Japan on 17 March 1969 for medical treatment.  

6.  An MEB, dated 7 April 1969, states, in pertinent part, that the applicant was being evaluated for a serious congenital anomaly in the lower back and that he was evacuated from Vietnam because he was unable to perform his duties.  He was diagnosed with spondylolisthesis, Grade III or severe.  There is no mention of any injury in Vietnam as the result of hostile action.  A PEB recommended he be retired for disability.

7.  On 29 July 1969, the applicant was permanently retired in the rank of first lieutenant by reason of physical disability.

8.  The applicant’s DD Form 214 shows the National Defense Service Medal, the Vietnam Service Medal, the Combat Infantryman Badge, and the Republic of Vietnam Campaign Medal with Device 1960 as authorized awards.

9.  There are no orders for the Purple Heart in the applicant’s service personnel records.  His name does not appear on the Vietnam Casualty Roster.


10.  Item 21 (Awards and Decorations) of the applicant’s DA Form 66 (Officer Qualification Record) shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, and the Combat Infantryman Badge.  Item   23 (Qualification in Arms) shows he qualified as expert in the M-16 rifle on          1 November 1968.

11.  In support of his claim with his original application, the applicant provided a 2003 DVA medical record which shows he reported that he injured his back a second time in Vietnam when a mortar round detonated close by and threw him in the air and he landed on a ramp.  He also provided a medical report, dated     8 October 2003, which states in part, “From the records that I am supplied...He had a second injury to his lower back when he was disembarking a landing craft on a river bank.  A mortar round detonated close by, and threw the patient into the air.  He landed with his back across a metal rack.”  

12.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the applicant's unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation based on Department of the Army General Orders Number 51, dated 1971.

13.  Army Regulation 600-8-22 (Military Awards) provides 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.  

14.  Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part, it states that all decorations, service medals, campaign credits, and badges awarded or authorized, as listed in item 21 of the DA Form 66, will be entered in item 24.

15.  The National Institutes of Health Internet site medlineplus.gov indicates that in about 5 percent of the adult population there is a developmental crack in one of the vertebrae, usually at the point at which the lumbar part of the spine joins the sacrum.  It may develop as a stress fracture.  This type of fracture (called a spondylolysis) is simply a crack in part of the vertebra and may cause no problem at all.  However, sometimes the cracked vertebra does slip forward over the vertebra below it.  If the stress fracture weakens the bone so much that it is 

unable to maintain its proper position, the vertebra can start to shift out of position.  This condition is called spondylolisthesis.  The Internet site also states that there may be a hereditary aspect to spondylolysis.  An individual may be born with thin vertebral bone and therefore may be vulnerable to this condition.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not show that the applicant was retired because of an injury, whether sustained while he was in Ranger School or in Vietnam.  It shows he was retired because of a congenital condition, spondylolisthesis.  It appears that the condition was discovered as a consequence of treatment for his injury in Ranger School, but at that time the symptoms did not meet the regulatory criteria that would have warranted a disability separation.

2.  The applicant’s argument that it is a reasonable inference to conclude that he had sufficiently recovered from his Ranger School injury to warrant his being sent to Vietnam appears to be valid.  That does not mean that he did not still have the congenital condition, though.  However, the question arising now is how he incurred the injury in Vietnam that re-aggravated his already-existing congenital condition.  Unfortunately, there is still insufficient evidence to show that the injury was the result of hostile action.

3.  It is also true that the Board conceded there were administrative errors in his record.  However, they were errors in equity, not errors in the preparation of his DD Form 214.

4.  The Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation could not have been added to the applicant’s DD Form 214 at the time he retired in 1969 because they had not been awarded to his unit until 1971.  It appears the clerk who prepared his DD Form 214 was following regulatory guidance when two bronze service stars for wear on his Vietnam Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar were not added to his DD Form 214 because those awards were not listed in item 21 of his DA Form 66 (even though the clerk added one award that was not listed on his DA Form 66).  The Board added these four awards to his DD Form 214 as a matter of equity because he is eligible to wear them, not because they were erroneously omitted from his DD Form 214.

5.  Since the applicant mentions the Expert Marksmanship Qualification Badge with Rifle Bar, this badge should now be added to his DD Form 214.

6.  Again, there is insufficient evidence at this time that shows the applicant’s injury in Vietnam was a result of hostile action.  However, he provided with his original application a medical report, dated 8 October 2003, which stated in part, 
“From the records that I am supplied...He had a second injury to his lower back when he was disembarking a landing craft on a river bank.  A mortar round detonated close by, and threw the patient into the air.  He landed with his back across a metal rack.”  

7.  The applicant stated that his records are presently located with the DVA Appeals Management Center, but he will not be able to have access until a pending appeal is decided.  The source document the 8 October 2003 medical report referred to should be in those records.  If the applicant can obtain his service medical records and especially if that particular source document is from his service medical records, he may reapply to this Board.   

8.  Evidence shows that the applicant’s records contain an 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

__x___  __x___  __x__  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 to amend the decision of the ABCMR set forth in Docket Number AR20060011080 dated 21 February 2007.


2.  The Board determined that 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 to show that he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar.




      __           x_____
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20080001782


7


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508