IN THE CASE OF:	  

		BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20100006997 


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 (PH) and the 4th through 11th awards of the Air Medal (AM).

2.  The applicant states he was shot in the head during a combat mission in the Republic of Vietnam (RVN) and his medical records from that area were lost.  He claims he was treated for pain and was again seen in December 1971 for persistent pain.  He claims his head injury was omitted from the records so he could continue flight duties as an aviator.  He claims there was a dearth of pilots and documentation of the severity of his injury would have resulted in a grounding his unit could not afford.  He states 1994 medical records demonstrate and document his head injury in the RVN with subsequent development of a seizure disorder which resulted in a right temporal lobectomy.  He states there are severe memory lapses as a result of his injuries and surgeries.  He further indicates the Department of the Army awarded Combat Related Special Compensation (CRSC) for these same injuries and documentation verifies his disability is combat related.

3.  The applicant states that there are records missing from March and April 1972 when he was hospitalized and treated for the same head and neck pain.  He further states that the major in charge of his unit can attest to his being shot in the head.  He states that when he did not receive his AM's in 1972, it took 8 1/2 months to obtain 3, when he clearly had the flight hours required for 11.  He claims he renewed his efforts to obtain these awards when a neighbor wrote to his Senator on his behalf.

4.  The applicant provides the following documents in support of his application:

* Congressional inquiry packet
* retirement orders
* Standard Form 600 (Chronological Record of Medical Care), dated 20 December 1971 through 24 January 1972
* hospital summaries for the period 3-17 June 1994
* CRSC decision 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 was appointed as a second lieutenant and entered active duty on 28 August 1970.  His DA Form 2-1 (Personnel Qualification Record) shows he served in the RVN from 31 August 1971 through 31 March 1972.

3.  Item 9 (Awards, Decorations, and Campaigns) of the applicant's DA Form 2-1 shows he earned the following awards:

* National Defense Service Medal (NDSM)
* Vietnam Service Medal (VSM)
* AM (3rd Award)
* Parachutist Badge
* Army Aviator Badge (AAB)
* Republic of Vietnam Campaign Medal (RVNCM)
* Expert Marksmanship Qualification Badge with Pistol Bar (.38 caliber)
* Meritorious Service Medal

4.  The PH and 4th through 11th awards of the AM are not listed in item 9 of the applicant's DA Form 2-1, which he last reviewed on 15 March 1979.  His record is also void of any orders or other documents that indicate he was ever wounded in action or recommended for or awarded the PH by proper authority while serving on active duty.  It is also void of any orders or documents indicating the 4th through 11th awards of the AM.

5.  His record contains DA Forms 759 and 759-1 (Individual Flight Record and Flight Certificate - Army (Parts I and II)) for the periods September 1971 through December 1971 and December 1971 through March 1972.  These forms show the applicant completed a total of 253 hours of combat flight time.  The mission symbol for all of these flight hours is "C."

6.  His record contains extensive medical treatment records prepared during the applicant's disability processing which ultimately led to a determination that he was unfit for further service by reason of disability based on a seizure disorder.  None of the supporting medical treatment records indicate the applicant's seizure disorder was the result of wounds received in the RVN.

7.  The DA Form 199 (Physical Evaluation Board Proceedings) in his record indicates his disabling condition did result from a combat-related injury.

8.  His record is also void of any orders or other documents indicating he was ever awarded the PH by proper authority while serving on active duty.

9.  On 23 May 1980, the applicant was honorably retired in the rank of captain after completing 9 years, 8 months, and 26 days of active duty service.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he was separated by reason of temporary physical disability and placed on the Temporary Disability Retired List (TDRL).

10.  The PH is not included in the list of earned awards in item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214.  Item 13 lists three awards of the AM.

11.  On 30 June 1983, the applicant was removed from the TDRL and permanently retired in the grade of captain with a 100-percent disability rating.

12.  The applicant provides a Standard Form 600 documenting medical treatment between 20 December 1971 and 24 January 1972.  This document shows he was treated for pain resulting from an injury received 2 weeks earlier on 20 December 1971.  It fails to indicate the injury was received as a result of enemy action.  He also provides hospital summaries issued in June 1994 which show he was admitted to a hospital and treated for depression and seizure disorder conditions.  The medical history outlined in these summaries fails to indicate his medical conditions resulted from combat injuries.

13.  During the processing of this case, a member of the Board's staff reviewed the DA Vietnam casualty roster.  The applicant's name is not included on this roster.

14.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards policy.  Paragraph 2-8 contains guidance on the PH.  It states the PH is awarded to members wounded in action.  It also states that in order to award the PH, there must be evidence of the wound for which the award is being made was received as a result of enemy action, the wound required treatment by military medical personnel, and a record of the medical treatment was made a matter of official record.

15.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) defined terms and provided guidelines for award of the AM based upon the number and types of missions or hours.  Twenty-five category I missions (air assault and equally dangerous missions) and accrual of a minimum of 25 hours of flight time while engaged in category I missions was the standard established for which sustained operations were deemed worthy of recognition by an award of the AM.

16.  U.S. Army Vietnam Regulation 672-1 further indicated combat missions were divided into three categories.  A category I mission was defined as a mission performed in an assault role in which a hostile force was engaged and was characterized by delivery of ordnance against the hostile force or delivery of friendly troops or supplies into the immediate combat operations area.  A category II mission was characterized by support rendered a friendly force immediately before, during or immediately following a combat operation.  A category III mission was characterized by support of friendly forces not connected with an immediate combat operation, but which must have been accomplished at altitudes which made the aircraft at times vulnerable to small arms fire or under hazardous weather or terrain conditions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention he should be awarded the PH based on being wounded in action in the RVN has been carefully considered.  However, the evidence of record and independent evidence submitted by the applicant fails to support this claim.

2.  By regulation, in order to support award of the PH, the member must have been wounded in action and there must be evidence the wound for which the award is being made was received as a result of enemy action, the wound must have required medical treatment by military medical personnel, and this medical treatment must have been made a matter of official record.

3.  The medical treatment records remaining in his record and those he submitted fail to show his disabling seizure disorder resulted from being wounded in action in the RVN.  Further, his record is void of any orders or other documents to indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty.

4.  The PH is not included in the list of earned awards in item 9 of his 
DA Form 2-1 which he last reviewed in 1979, nearly 7 years after his departure from the RVN.  Further, there is no indication he pursued award of the PH in the more than 9 years he remained serving on active duty after his departure from the RVN.

5.  Finally, the applicant's name is not included on the Vietnam casualty roster, the official DA list of RVN battle casualties.  As a result, regrettably, absent any evidence of record confirming the applicant's disabling medical condition was the result of being wounded as a result of enemy action, the regulatory burden of proof necessary to support award of the PH has not been met.  

6.  The applicant's contention that he is eligible to receive 11 awards of the AM has also been carefully considered.  However, the evidence of record is not sufficient to support this claim.

7.  The governing U.S. Army Vietnam regulation provided for award of the AM for completion of 25 category I missions, 50 category II missions, and 100 category III missions.

8.  The evidence of record confirms the flight records on file supported three awards of the AM.  This is evidenced by the AM entry in item 9 of the applicant's DA Form 2-1, which he last reviewed nearly 7 years after he departed the RVN.  It is further supported by the entry in item 13 of his final DD Form 214 issued on 23 May 1980, more than 8 years after he departed the RVN.  As a result, absent any evidence of record or independent evidence sufficient to confirm all of his missions in the RVN were category I (assault role) missions, the regulatory burden of proof necessary to support additional awards of the AM has not been satisfied in this case.  

9.  The applicant and all others concerned should know this action related to award of the PH and additional AM's in no way diminishes the sacrifices made by him 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)                                         AR20100006997



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)