IN THE CASE OF:	  

		BOARD DATE:	  16 March 2010

		DOCKET NUMBER:  AR20090013947 


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 in 1969 his unit was under attack for nearly two days and during that time he was shooting a bazooka while under fire from the enemy.  He states he damaged both eardrums while returning fire.  The applicant states he was taken to a U.S. hospital on the Cambodian border and told he had shattered his ear drums.  The states he was told his hearing would eventually return to normal but he is currently receiving disability compensation from the Department of Veterans Affairs (VA) for his hearing loss.  The applicant states as a result of his hearing loss in Vietnam he was taken out of field combat and he spent the duration of his tour of duty in Vietnam with an intelligence unit.  

3.  The applicant provides a copy of his 1969 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a copy of his 16 May 1969 Physical Profile Record, and a copy of his 1970 VA rating decision.

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.  Records available to the Board indicate the applicant was inducted and entered active duty on 4 December 1967.  Following completion of training the applicant was briefly assigned to Fort Lewis, Washington before being assigned to Vietnam as an infantry squad leader with the 9th Infantry in November 1968.

3.  On 16 May 1969 the applicant was issued a temporary P-3 physical profile as a result of bilateral neuro sensory hearing loss due to “acute trauma.”  The profile precluded duties requiring acute hearing such as guard duty.

4.  The applicant’s name is not among a list of individuals reported as combat casualties during Vietnam and item 40 (wounds) on his DA Form 20 (Enlisted Qualification Record) is blank.  There is no indication the applicant was ever awarded the Purple Heart.

5.  The applicant’s file does, however, show that he was awarded an Army Commendation Medal with “V” device as a result of his heroic actions on 16 April 1969 and 10 May 1969.

6.  In July 1969 the applicant departed Vietnam and on 16 July 1969 he was released from active duty.

7.  In March 1970 the VA noted in its rating decision that the applicant was placed on a limited profile in May 1969 because of neurosensory hearing loss due to acute trauma.

8.  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.

9.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided, in pertinent part, for award of the Purple Heart.  The regulation stated that authority to award the Purple Heart was delegated to hospital commanders.  Further, it directed that all personnel treated and released within 24 hours will be awarded the Purple Heart by the organization to which the individual is assigned.  Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam will be awarded the Purple Heart directly by the hospital commander rendering treatment.

10.  Included as part of the Department of Defense Appropriations Act for fiscal year 1994 was an amendment to the rules governing award of the Purple Heart.  While the original rules established that the Purple Heart would be awarded to individuals killed or wounded as a result of hostile action the amendment enabled the Secretaries of each department to award the Purple Heart to members of the armed forces who were killed or wounded in action by weapon fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States.  This ruling, in effect, granted the service Secretaries the authority to award the Purple Heart to individuals directly engaged in armed conflict who were killed or wounded as a result of "friendly fire."

11.  Army Regulation 600-8-22 provides, in pertinent part, for award of the Purple Heart to individuals wounded or killed as a result of “friendly fire” in the “heat of battle” as long as the “friendly” projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant’s record does confirm he was given a temporary physical profile for hearing loss as a result of acute trauma in May 1969, unfortunately there is no evidence which directly ties his hearing loss to any hostile action.

2.  While it is possible the applicant sustained the hearing loss during the action on 10 May 1969 which resulted in his award of an Army Commendation Medal with “V” device there is insufficient evidence available to the Board to confirm such a scenario.  In addition, there is no evidence to show he received treatment (other than an examination and a diagnosis) for his hearing loss. 

3.  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 the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090013947



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ABCMR Record of Proceedings (cont)                                         AR20090013947



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