IN THE CASE OF:	  

		BOARD DATE:	  24 July 2008

		DOCKET NUMBER:  AR20080008201 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, award of the Purple Heart (PH). 

2.  The applicant states, in effect, that he was wounded in action in the Republic of Vietnam (RVN) when the convoy he was travelling in came under attack.  He claims the vehicle he was in was hit, which caused it to flip over killing the driver, a passenger, and throwing him out of the vehicle.  He further states that when he awoke, his left ear was bleeding.  He states he cleaned his ear and told no one of his injury until a few days later, when his ear started hurting.  

3.  The applicant provides a self-authored letter; separation document (DD Form 214), and clinical record consultation report (SF 513) in support of his application.

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 record shows he was inducted into the Army of the United States and entered active duty on 10 May 1971, and was trained in and awarded military occupational specialty (MOS) 73C (Pay Disbursement Specialist).

3.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows he served in the RVN from 14 March 1972 through 1 March 1973.  Item 9 (Awards, Decorations and Campaigns) does not include the PH among the awards listed, and the applicant last reviewed the record on 17 February 1973.  

4.  The applicant's Official Military Personnel File (OMPF) contains a Report of Medical Examination (SF 88) and a Report of Medical History (SF 93), both dated 19 October 1993, which were prepared during his retirement processing.  These documents indicate the applicant suffered from hearing loss and that he had a 2 profile for hearing as a result.  His OMPF is void of orders or other documents that indicate he was ever wounded in action, or awarded the PH, and there are no medical treatment records on file that indicate he was ever treated for a combat-related wound or injury.  

5.  On 31 May 1994, the applicant was honorably released from active duty (REFRAD) for the purpose of retirement after completing 23 years and 21 days of active military service.  The DD Form 214 he was issued shows he earned the following awards during his active duty tenure:  Bronze Star Medal; Meritorious Service Medal; Army Commendation Medal (2nd Award); Army Good Conduct Medal (7th Award); National Defense Service Medal (2nd Award); Army Service Ribbon; Overseas Service Ribbon with Numeral 4; Noncommissioned Officer Professional Development Ribbon with Numeral 3; RVN Campaign Medal; Vietnam Service Medal; and 2 Overseas Service Bars.  The PH is not included in the list of awards contained on his final DD Form 214, which he authenticated with his signature on the date of his separation from active duty for retirement.  

6.  The applicant provides a Clinical Record Consultation Sheet (SF Form 513), dated 15 November 1972.  This document indicates he suffered from an infection or laceration to the right tympanic membrane (middle ear), which resulted in some hearing loss.  This treatment record gives no indication that his ear injury was received as a result of enemy/combat action.  

7.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant's name was not included on this casualty list.  The staff member also reviewed the 
DA Awards and Decorations Computer Assisted Retrieval System (ADCARS), which contains award orders issued during the Vietnam Era.  There were no orders pertaining to the applicant on file.

8.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to award a PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that it required treatment by military medical personnel, and a record of this treatment must have been made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be awarded the PH based on an ear injury he received in the RVN was carefully considered.  However, there is insufficient evidence to support this claim. 

2.  By regulation, in order to award the PH it is necessary to establish that the wound for which the award is being made was received as a result of enemy action.  The evidence of record in this case confirms the applicant had a profile for hearing loss, and the medical treatment record he provides shows he was treated for an ear infection that caused hearing loss in the RVN.  However, none of the medical documents on file indicate the applicant's ear injury was received as a result of enemy action.  

3.  The PH is not included in the list of awards contained on his DA Form 2-1, which he last reviewed in February 1993, nearly 20 years after he departed the RVN, nor is it included in the list of awards contained on his final 1994 DD Form 214, which he authenticated with his signature on the date of his separation for retirement.  In effect, his review of his record and authentication of his DD Form 214 were his verification that the information on the record and separation document, to include the awards listed, was correct at the time the record was reviewed and the separation document was prepared and issued.    

4.  Further, the applicant's record is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty, and there is no indication that he pursued this award during the over 20 years he remained on active duty subsequent to his departure from the RVN.  In addition, his name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties, and there are no PH orders for him on file on the ADCARS.  Absent any evidence that the applicant's ear injury and/or hearing loss were received as a result of enemy action, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  

5.  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.   

6.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x ____  ___x____  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.



      ________x______________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080008201



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ABCMR Record of Proceedings (cont)                                         AR20080008201



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