IN THE CASE OF:	  

		BOARD DATE:	  2 October 2008

		DOCKET NUMBER:  AR20080011159 


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, reconsideration of his request for award of the Purple Heart for injuries he received during his service in the Republic of Vietnam (RVN).

2.  The applicant states, in effect, he would like the Board to look at new evidence from the Department of Veterans Affairs (VA), Nashville, Tennessee, and Doctor J____ H. Q______, VA Medical Center, Johnson City, Tennessee.

3.  The applicant provides 2 Standard Forms (SF) 600 (Chronological Records of Medical Care), with opening entry dates of 8 May 1969 and 28 July 1970; Department of VA, Nashville VA Regional Office, Nashville, Tennessee, letter, dated 1 February 2008; Department of VA, Nashville VA Regional Office, Nashville, Tennessee, Rating Decision, dated 30 January 2008; and Confidential Summary, dated 16 January 2008, subject:  Initial Evaluation for Post-Traumatic Stress Disorder (PTSD).

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 AR20070007284, on 20 November 2007.


2.  The applicant's military service records show that he enlisted in the Regular Army (RA) and entered active duty for a period of 3 years on 6 May 1969.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 64A (Light Vehicle Driver).  The applicant was later reclassified into MOS 64B (Heavy Vehicle Driver) on
9 January 1970 and then into MOS 64C (Motor Transport Operator) on
20 August 1971.

3.  The applicant's military service records contain a DA Form 20 (Enlisted Qualification Record).  Item 31 (Foreign Service) shows that he served overseas in the RVN from 9 October 1969 through 5 October 1970.

4.  A thorough review of the applicant’s military service records revealed that there are no orders in the applicant’s records that show he was awarded the Purple Heart.  There also is no evidence in his records that he was wounded or treated for wounds as a result of hostile action.  His DA Form 20 does not show an entry in Item 40 (Wounds) or list the Purple Heart in Item 41 (Awards and Decorations).  In addition, a subsequent review of The Adjutant General Office, Casualty Division's Vietnam Casualty Roster confirmed that the applicant’s name is not listed on the roster.

5.  A search of the U.S. Army Human Resources Command (USA HRC), Awards and Decorations Computer Assisted Retrieval System (ADCARS) for the Vietnam Conflict failed to produce orders showing award of the Purple Heart to the applicant for wounds received in action in the RVN.

6.  The applicant's military service records contain an SF 88 (Report of Medical Examination), dated 29 April 1969, which was completed by the attending physician at the time of the applicant’s entrance medical examination for acceptance into military service.  Item 36 (Feet) of the Clinical Evaluation section of the SF 88 shows that the attending physician placed a check mark in the “Normal” column for this item.  Item 70 (Hearing) is absent an entry.  Item 73 (Notes) contains the entry “Physical Inspection, date 6 May 1969 AFES Knoxville, Tenn.  No additional defects discovered (Fit) for military service.”  Item 74 (Summary of Defects and Diagnoses) contains the entry “70. Defective Hearing H2.”   This document also shows that Captain John E. B____, Medical Corps, placed his signature on the document certifying that the applicant was qualified for induction.





7.  The applicant's military service records contain an SF 88 (Report of Medical Examination), dated 16 November 1971, which was completed by the attending physician at the time of the applicant’s medical examination prior to his release from active duty.  Item 36 (Feet) of the Clinical Evaluation section of the SF 88 shows that the attending physician placed a check mark in the “Normal” column for this item.  Item 70 (Hearing) is absent an entry.  Item 73 (Notes) contains the entry “Medical records reviewed” and Item 74 (Summary of Defects and Diagnoses) contains the entry “70. Hearing Defect H2 Profile, EPTS [Existed Prior to Service].”   This document also shows that Captain M______ D_______, Medical Corps, placed his signature on the document certifying that the applicant was qualified for separation.

8.  The applicant's military service records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 7January 1972 and DD Form 215 (Correction to DD Form 214 -  Certificate of Release or Discharge from Active Duty), dated 6 August 2008. Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), as corrected by the DD Form 215, shows he was awarded the National Defense Service Medal, Vietnam Service Medal with
4 bronze service stars, Republic of Vietnam Campaign Medal with “1960” Device, Meritorious Unit Commendation, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Marksman Marksmanship Qualification Badge with (M-16) Rifle Bar.  The DD Form 214 also shows the applicant was honorably released from active duty (REFRAD) on 7 January 1972 and credited with completing a total of 2 years, 8 months, and 2 days net active service.

9.  In support of his request for reconsideration, the applicant provides the following documents.

     a.  An SF 600 (Chronological Record of Medical Care), with an opening entry date of 8 May 1969.  This SF 600, in pertinent part, contains an entry that the applicant highlighted, dated 27 November 1969, which reads “was in tower on Guard duty last night now ears roaring and aching.”  This SF 600 also contains an earlier entry, dated 25 November 1969, which, in pertinent part, reads “EM c/o [Enlisted Member complains of] earache x 2 days, roaring sound during the day.”

     b.  An SF 600 (Chronological Record of Medical Care), with an opening entry date of 28 July 1970.  This SF 600, in pertinent part, contains an entry that the applicant highlighted, dated 31 August 1970, which reads “c/o cut R[ight] foot.  Cleaned an[d] dressed R[ight] foot.  Patient to RTC [return to clinic] in 3 days an[d] not to wear R[ight] Boot for 3 days.”  This SF 600 also contains an entry, dated 12 November 1970, which, in pertinent part, reads “PT c/o [Patient complains of] earache L[eft] ear.”
     c.  Department of VA, Nashville VA Regional Office, Nashville, Tennessee, letter, dated 1 February 2008.  This document shows, in pertinent part, the VA made a decision on the applicant’s claim for service connected compensation, that was received on 19 March 2007.  The VA determined the applicant’s hearing loss, both ears (40%); otitis media, left ear (10%); and tinnitus (claimed as bilateral tinnitus) (10%) have not changed.

     d.  Department of VA, Nashville VA Regional Office, Nashville, Tennessee, Rating Decision, dated 30 January 2008.  This document shows, in pertinent part, that the VA received a request to reopen a previous claim on 19 March 2007.  The VA determined that evaluation of the applicant’s hearing loss, both ears, which is currently 40 percent disabling, is continued; evaluation of his tinnitus (claimed as bilateral tinnitus), which is currently 10 percent disabling, is continued; and evaluation of his otitis media, left ear, which is currently
10 percent disabling, is continued.

     e.  Confidential Summary, dated 16 January 2008, subject:  Initial Evaluation for Post-Traumatic Stress Disorder (PTSD).  This document contains, in pertinent part, a summary of the applicant’s military history, as reported by the applicant.  This document states, in pertinent part, “The veteran reported that he believes he was wounded in late August of 1970 after a mortar attack on his position in Vietnam.  The veteran stated that he was at a fire base at An Khe when the enemy attacked.  The veteran stated he was asleep in his bunker and was awakened at 4 a.m.  The veteran stated that he ran out of the bunker urgently to get into his truck and drive and did not put his boots on because the base was under attack.  The veteran recalls feeling a “hot pain” in his right foot on his way to his vehicle.  Later, the veteran noted that his right foot was bleeding with a large cut.  The veteran sought medical attention, which is noted in his Military Medical Treatment Record as being cleaned and dressed on August 31, 1970.  The veteran believes that he either stepped on a piece of metal or was hit by shrapnel.  The veteran described another stressful event that occurred around November or December of 1969 when both of his ears were injured from the concussions of enemy mortar blasts when his unit was attacked between An Khe and Pleiku while he was attached to the 4th Infantry Division.  The veteran stated that his convoy was hit by mortar fire from the enemy while transporting JP-40 Aviation Fuel.  The veteran stated that his unit referred to the route between An Khe and Pleiku where he was traveling as ‘ambush alley’ because of heavy enemy activity he would regularly encounter there.”

10.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  This Army regulation, in pertinent part, states that the Purple Heart is awarded for a wound sustained as a result of hostile action.  It also gives examples of enemy-related injuries, which justify award of the Purple Heart, which includes concussion injuries caused as a result of enemy generated explosions.  It also provides that 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his request for award of the Purple Heart should be reconsidered based on new evidence he presents concerning his hearing loss resulting from the concussion of enemy mortar blasts in November 1969 and a cut he received on his right foot that occurred on
31 August 1970. 

2.  There is no evidence in the applicant’s military service records that shows he was wounded or treated for wounds as a result of hostile action; his DA Form 20 does not show an entry in Item 40 (Wounds) or list the Purple Heart in Item 41 (Awards and Decorations); the applicant's name is not listed on The Adjutant General Office, Casualty Division's, Vietnam Casualty Roster; and there are no orders in the applicant’s military service records or in the USA HRC, ADCARS data base that show the applicant was awarded the Purple Heart. 

3.  The medical evidence of record shows that the applicant initially complained of an earache on 25 November 1969, which he had been experiencing for at least 2 days.  Whereas, the entry in the applicant’s medical records that he points to (i.e., on 27 November 1969) as evidence of his hearing loss due to concussion from enemy mortar blasts refers to an incident that occurred on 26 November 1969, which was subsequent to his initial complaint about having had an earache for at least 2 days.  Nonetheless, in either case, there is no medical evidence of record that the applicant’s earache was the result of concussions from enemy mortar blasts.  It is noted that the evidence of record shows that the physician who conducted the applicant’s entrance medical examination documented the applicant’s defective hearing.  Moreover, the evidence of record shows the physician who conducted the applicant’s medical examination prior to the applicant’s separation reviewed his medical records, documented the applicant’s hearing loss at that time, and also confirmed that his defective hearing condition existed prior to the applicant’s entry into service.  Therefore, in view of all of the foregoing, there is insufficient evidence to support the applicant’s claim for award of the Purple Heart based on hearing loss due to concussion from enemy mortar blasts in November 1969.


4.  The medical evidence of record shows that the applicant was treated for a cut he received on 31 August 1970.  However, the medical evidence of record provides no information regarding how the cut was sustained and fails to indicate the cut was received as a direct result of, or was caused by, enemy action.  In support of his request for reconsideration, the applicant now provides as evidence a document in which he reported to his physician on 16 January 2008, that “[he] believes he was wounded in late August of 1970 after a mortar attack on his position in Vietnam” and that “[he] believes that he either stepped on a piece of metal or was hit by shrapnel.”  However, this document, which is based on the applicant’s own account of the incident nearly 38 years later, also provides insufficient evidence to support a claim to the Purple Heart.  Therefore, in view of the all of the foregoing, there is insufficient evidence to support award of the Purple Heart to the applicant based on an injury he received on 31 August 1970.

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 Board wants the applicant and all others concerned to 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 to amend the decision of the ABCMR set forth in Docket Number AR20070007284, dated 20 November 2007.




      _______ _   _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)                                         AR20080011159



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ABCMR Record of Proceedings (cont)                                         AR20080011159



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