IN THE CASE OF:	  

		BOARD DATE:	  	  24 February 2009

		DOCKET NUMBER:  AR20080019095 


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, correction of his discharge document to show award of the Purple Heart.

2.  The applicant states, in effect, correspondence from the Department of Veterans Affairs (VA) confirms he was awarded the Purple Heart for tinnitus.

3.  The applicant provides a copy of page 2 of his VA Rating Decision (2008).

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 military personnel records show that he enlisted in the Regular Army for a period of 3 years on 15 April 1963.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant's military personnel records contain a DA Form 20 (Enlisted Qualification Record).

   a.  Item 31 (Foreign Service) shows that he served in the U.S. Army Pacific (USARPAC) in the Republic of Vietnam (RVN) from 15 August 1965 through 4 April 1966.

	b.  Item 38 (Record of Assignments) shows he was assigned to Company B, 2d Squadron, 12th Cavalry, 1st Cavalry Division (USARPAC), from 16 August 
1965 to 3 April 1966.

	c.  Item 40 (Wounds) is absent an entry.

	d.  Item 41 (Awards and Decorations) fails to show he was authorized award of the Purple Heart.

4.  The applicant's military personnel records contain a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he entered active duty on 15 April 1963.  Item 12 (Last Duty Assignment and Major Command) shows he was assigned to Company B, 2d Squadron, 12th Cavalry, 1st Cavalry Division (U.S. Army Vietnam).  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows he was awarded the Vietnam Service Medal, Combat Infantryman Badge, Expert Marksmanship Qualification Badge with (M-14) Rifle and (.45 caliber) Pistol Bars, and Marksman Marksmanship Qualification Badge with (M-1) Rifle and (M-60) Machinegun Bars.  Item 27 (Wounds Received as a Result of Action with Enemy Forces) contains the entry "none."  The DD Form 214 also shows the applicant was honorably released from active duty on 10 April 1966 and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining military service obligation.  At the time he had completed 2 years, 11 months, and 26 days of net active service this period; 2 years, 11 months, and 26 days of total active service; and 7 months and 24 days of foreign service.

5.  There is no documentation in the applicant’s military personnel records that shows he was wounded or treated for wounds as a result of hostile action.  There is also no evidence that the applicant was admitted to a military hospital at any time during his tour of duty in the RVN.  In addition, a review of the Adjutant General's Office Casualty Division Casualty Reference Name Listing for Vietnam confirmed that the applicant’s name is not listed on the roster.
6.  A thorough review of the applicant’s military personnel records revealed that there are no orders in the applicant’s records that show he was awarded the Purple Heart.  In addition, a search of the U.S. Army Human Resources Command Awards and Decorations Computer Assisted Retrieval System for the Vietnam Conflict failed to produce orders showing award of the Purple Heart to the applicant.

7.  In support of his request, the applicant provides a copy of page 2 of his VA Rating Decision (2008).  Paragraph 1 (Service connection for tinnitus) shows, in pertinent part, "[a] review of your service treatment record does not show complaint, treatment, or diagnosis for hearing loss of either ear.  Your DD Form 214 shows that you served in Vietnam in an armor unit.  Your decorations include the Purple Heart Medal.  You reported military noise exposure (emphasis added)."  This paragraph also shows that an evaluation of 10 percent was assigned and granted for recurrent tinnitus effective 7 March 
2008.  Paragraph 2 (Service connection for bilateral hearing loss) shows, in pertinent part, "[a] review of your service treatment record does not show complaint, treatment, or diagnosis for hearing loss of either ear.  Your DD Form 214 shows that you served in Vietnam in an armor unit.  Your decorations include the Purple Heart Medal.  You reported military noise exposure."  This paragraph also shows "[t]he examiner stated that [the applicant’s] hearing is normally [sic], bilaterally."

8.  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.  This regulation also provides examples of injuries or wounds which clearly do not qualify for award of the Purple Heart and cites, in pertinent part, accidents involving explosive, aircraft, vehicular, and other accidental wounds or injuries not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge document should be corrected to show award of the Purple Heart because his Department of VA Rating Decision confirms he was awarded the Purple Heart.

2.  There is no evidence in the applicant’s military personnel 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 or list the Purple Heart in item 41; the applicant's name is not listed on the Adjutant General's Office Casualty Division Casualty Reference Name Listing for Vietnam; and there are no orders in the applicant’s military personnel records or in the U.S. Army Human Resources Command Awards and Decorations Computer Assisted Retrieval System that show the applicant was awarded the Purple Heart.  In addition, there is no evidence in the applicant’s military service records that shows he was wounded as a result of hostile action, that such wound required treatment, or that the medical treatment was made a matter of official record.

3.  The applicant’s claim that he received the Purple Heart during his service in the RVN was carefully considered.  However, the applicant provides no official documentary evidence pertaining to the nature of the injury (e.g., battle casualty report, medical treatment records, etc.) in support of his request.  In addition, the VA Rating Decision confirms that the applicant’s military service treatment records do not show complaint, treatment or diagnosis for hearing loss of either ear.  Moreover, notwithstanding the VA Rating Decision that indicates that the applicant’s decorations include the Purple Heart, there is no evidence of record that shows he was awarded the Purple Heart.  It is noted that the Military Awards regulation provides examples of injuries or wounds which clearly do not qualify for award of the Purple Heart and cites, in pertinent part, accidents involving explosive, aircraft, vehicular, and other accidental wounds or injuries not related to or caused by enemy action.  In this regard, the applicant contends that his tinnitus was related to "military noise exposure."  Thus, the applicant provides insufficient evidence in support of his claim to the Purple Heart.  Therefore, in view of all of the foregoing, there is insufficient basis for awarding the Purple Heart to the applicant 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.


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 for correction of the records of the individual concerned.

2.  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.



      ____________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)                                         AR20080019095



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ABCMR Record of Proceedings (cont)                                         AR20080019095



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