IN THE CASE OF:	  

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090015446 


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, he should have received a PH based on a concussion he received due to explosive impact of a rocket attack at Red Beach. 

3.  The applicant provides an SF 600 (Chronological Record of Medical Care), dated 15 July 1968, 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's record shows he enlisted in the Regular Army and entered active duty on 18 April 1966.  He was trained in and awarded military occupational specialty (MOS) 68B (Aircraft Engineer Repairer).  

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 27 October 1966 through 30 June 1968.  Item 40 (Wounds) is blank and the PH is not included in the list of awards contained in item 41 (Awards and Decorations).  The applicant last audited the DA Form 20 on 7 April 1969.  

4.  The applicant's Official Military Personnel File (OMPF) is void of any orders or other documents that indicate the applicant was ever recommended for or awarded the PH by proper authority while serving in the RVN.  It is also void of any medical treatment records that indicate he was ever treated for a combat related wound.  

5.  On 17 April 1969, the applicant was honorably released from active duty (REFRAD), in the rank of specialist five, after completing 3 years of active military service.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time does not include the PH in the list of awards contained in item 24 (Decorations, Medals, Badges, Commendations, Citations and Commendations Awarded or Authorized).  

6.  The applicant provides an SF 600 that contains an entry for 0300 hours on 
15 July 1968, which indicates he was brought to the dispensary in a semi-conscious condition.  It also indicates he was in charge of quarters (CQ), everything was normal and he was found sitting in a chair with his eyes rolled back and non-responsive.  It further indicates that after ten minutes he vomited and finally became alert.  Additionally, it indicates he was asked to give a urine sample, but he was unable to.  An entry for 0440 hours, on the same date shows a diagnosis that included "now semi conscious again-facial spasm."  "PE Neurological – response to pain and verbal stimulation – all other signs normal except for rolling eyes facial twisted- semi conscious state."  There is also an entry that states "Red Beach received 10 rounds 122 millimeter rockets 2200
14 Jun 1968."  This form does not indicate the applicant was knocked unconscious during a rocket attack, or that his condition was the result of this attack.  

7.  During the processing of this case, a member of the Board's staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  There is no entry pertaining to the applicant on this roster.  


8.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-8 contains guidance on award of the PH.  It states, in pertinent part, that in order to award the PH there must be evidence 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 a record of this medical treatment must have been made a matter of official record.  The regulation also contains examples of injuries that do not support award of the PH. These examples include battle fatigue and post traumatic stress disorder (PTSD).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is eligible for the PH based on a concussion and loss of consciousness due to an explosive impact of a rocket attack was carefully considered.  However, by regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action.  The PH is not authorized for battle fatigue and/or PTSD. 

2.  The medical treatment record provided by the applicant, dated 15 July 1968, fails to show the condition he was treated for was the result of a concussion that occurred as a result of an enemy rocket attack on 14 June 1968.  

3.  The applicant's DA Form 20 contains no entries, which indicates he was never wounded in action, and item 41 does not include the PH in this list of awards.  The applicant last audited the DA Form 20 on 7 April 1969 shortly before his REFRAD and almost a year after he departed the RVN.  There is no evidence that he ever attempted to resolve the PH issue while he was on active duty, or in the more than 30 years that have passed since his discharge.  

4.  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 in the RVN.  Finally, his name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties. 

5.  Based on the lack of evidence to show the condition the applicant was treated for was the result of enemy rocket attack, or any evidence that confirms he was wounded as a result of enemy action while in the RVN, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  




6.  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.  

7.  The applicant and all others concerned should know that this action related to award of the PH 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)                                         AR20090015446



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ABCMR Record of Proceedings (cont)                                         AR20090015446


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