IN THE CASE OF:	    

		BOARD DATE:	  	   7 October 2008

		DOCKET NUMBER:  AR20080008916 


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 award of the Purple Heart.  

2.  The applicant states that he lost his hearing in combat due to rockets and mortars over a period of 6 to 7 days.  His left ear was bleeding and the medic told him that he ruptured his ear drum.  The medic also told him that there was nothing to be done and his ear would be alright in a few days.  He states he has tinnitus in his left ear with a 10 percent disability rating and a zero percent disability rating for hearing loss.  

3.  The applicant provides a portion of a Department of Veterans Affairs (DVA) Rating Decision, 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 enlisted in the Regular Army on 25 August 1969.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty 36C (lineman).  He was assigned to Vietnam on 12 April 1970.  His highest grade achieved was specialist four (SP4)/ E-4.

3.  There are no orders which show the applicant was awarded the Purple Heart. Item 40 (Wounds) on the applicant's DA Form 20 (Enlisted Qualification Record) does not show he sustained wounds as a result of hostile action.  The applicant's name is not listed on the Vietnam Casualty Roster.

4.  The applicant was released from active duty on 31 March 1971.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the National Defense Service Medal, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal as authorized awards.  

5.  The DVA Rating Decision shows the applicant was granted service-connection for tinnitus at a 10 percent disability rating and hearing loss in his left ear at zero percent disability rating on 29 June 2005.  Service-connection for hearing loss in his right ear was not granted.  

6.  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 by medical personnel, 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.  

DISCUSSION AND CONCLUSIONS:

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

2.  The applicant contends that he lost his hearing in combat due to rockets and mortars.

3.  The Military Awards regulation states 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 of the Purple Heart.  The degree to which the enemy caused the injury must be considered.  

4.  Although the DVA Rating Decision indicates that the applicant was granted service-connection for left ear hearing loss, 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.  In addition, his Enlisted Qualification Record does not list any wounds he received as a result of hostile action in item 40.  Therefore, there is insufficient evidence on which to base award of the Purple Heart in this case.

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.



      ______XXXX________________
               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)                                         AR20080008916



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ABCMR Record of Proceedings (cont)                                         AR20080008916



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