IN THE CASE OF:	  

		BOARD DATE:	  25 September 2008

		DOCKET NUMBER:  AR20080011989 


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 injured while serving in the Republic of Vietnam (RVN), and this injury is documented by the Department of Veterans Affairs (VA).  

3.  The applicant provides the following documents in support of his application:  Self-Authored Statement; Request for Congressional Inquiry; Request Pertaining to Military Records (SF 180); Statement in Support of Claim (VA Form 21-4138): Separation Document (DD Form 214); Correction to DD Form 214 (DD 215); Psychologist Letter; and VA Regional Office (VARO) Document.

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 enlisted into the Regular Army and entered active duty on 5 October 1967, and that he was trained in and awarded military occupational specialty (MOS) 63H (Engine Power Train Repairman).  

3.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he served in the RVN from 12 May 1968 through 10 May 1969.  Item 40 (Wounds) is blank, and the PH is not included in the list of awards contained in Item 41 (Awards and Decorations).  

4.  The applicant’s record is void of orders or other documents that indicate he was ever wounded in action, or awarded the PH.  There are also no medical treatment records on file that indicate he was ever treated for a combat-related wound or injury.  The record also contains no orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty.  

5.  On 25 September 1970, the applicant was honorably released from active duty (REFRAD) after completing 2 years, 11 months, and 21 days of active military service.  The DD Form 214 he was issued at the time shows he earned the following awards during his active duty tenure:  Army Commendation Medal; National Defense Service Medal; Vietnam Service Medal; RVN Campaign Medal with Device (1960); and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).  The PH is not included in the list of awards contained on his DD Form 214 and the applicant authenticated the separation document with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his REFRAD.  

6.  The applicant provides a letter from his Psychologist, dated 19 December 2005, which indicates the applicant had presented a medical document from the United States Army Hospital, Wurzburg Germany, dated 18 February 1970, which diagnosed the applicant with Paranoid Schizophrenia.  The Psychologist further states that while the mental status assessment also included no symptoms of Schizophrenia, it did support the presence of service-related Post Traumatic Stress Disorder (PTSD), which is his actual diagnosis.  He further states that after seeing the applicant for 12 years, it is his professional opinion that the applicant has never been schizophrenic and there is no doubt in his mind that his PTSD is service-connected.

7.  The applicant also provides a photocopy of page 18 of a VA document (overstamped with “PHOTOCOPY VARO WACO”) which states he sustained a severe infection while serving in the RVN, and that he had a history of head trauma.  It further states that on 23 August 1990, the applicant was diagnosed with PTSD, chronic, rage.  

8.  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.  A review of the DA Awards and Decorations Computer Assisted Retrieval System (ADCARS), which contains award orders issued during the Vietnam Era, was also conducted.  There were no PH orders pertaining to the applicant on file in ADCARS.  

9.  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 the PH is awarded to any member who has been wounded or killed in action. The awards regulation defines a wound as an injury to any part of the body from an outside force or agent sustained under conditions defined by this regulation.  In order to support awarding a member the PH, it is necessary to establish that the wound for which the award is being made was received as a direct result of, or was caused by enemy action, the wound required treatment by medical personnel.  This treatment must be supported by records of medical treatment for the wound or injury received in action, and must have been made a matter of official record.  The regulation also contains examples of wounds or injuries that clearly do not support award of the PH.  Included in these examples is PTSD. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he is entitled to the PH based on injuries he received while serving in the RVN, and on a PTSD diagnosis subsequent to his separation was carefully considered.  However, 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, that it required treatment by military medical personnel, and that a record of treatment was made a matter of official record.  The regulation stipulates that the PH is not authorized based on PTSD.  

2.  The evidence of record provides no indication that the applicant was ever wounded in action, or that he was ever treated for a combat-related wound or injury by military medical personnel.  Item 40 of his DA Form 20 is blank, which indicates he was never wounded as a result of enemy action, and the PH is not included in the list of awards contained in Item 41.  The PH is also not included in the list of awards contained on his DD Form 214, which he authenticated with his signature on the date of his REFRAD.  In effect, his signature was his verification that the information contained on the separation document, to include the list of awards, was correct at the time the DD Form 214 was prepared and issued.  


3.  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 are no medical treatment records on file that show he was ever treated for a combat-related wound or injury.  Finally, his name is not included on the Vietnam Casualty Roster, the official list of RVN battle casualties, and there are no PH orders on file for him on ADCARS.  As a result, absent any evidence of record to corroborate his claim of entitlement to the PH, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  

4.  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.   

5.  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)                                         AR20080011989



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ABCMR Record of Proceedings (cont)                                         AR20080011989


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