IN THE CASE OF:
BOARD DATE: 22 March 2011
DOCKET NUMBER: AR20100023910
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 correction of his military records to show award of the Purple Heart.
2. He states that he is entitled to award of the Purple Heart due to blowing out his eardrums while serving in the Republic of Vietnam (RVN). He states that the September issue of the Veterans of Foreign War (VFW) magazine states, "Each service establishes its own eligibility criteria, but basically the wound must require treatment (and be given) on the battlefield by a medic/corpsman and/or a doctor in the hospital. Finally, the treatment has to be officially recorded."
3. He provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 5 November 1969; three Standard Forms (SF) 600 (Chronological Record of Medical Care), with treatment dates from 10 January 1968 through 17 October 1969; and a 2-page VFW magazine article, dated September 2010, 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army 4 April 1967. He successfully completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 05C (Radio Teletype Operator).
3. He arrived in the RVN and was assigned to Headquarters and Headquarters Battery, 1st Battalion, 27th Artillery on 3 November 1968.
4. Three SFs 600, with treatment dates ranging from 11 July 1969 through
17 October 1969, show he was treated for hearing loss and pain in both his ears. The documents indicate he was treated for his ear injuries on three different occasions and returned to duty.
5. He departed the RVN on 2 November 1969. On 5 November 1969, he was honorably released from active duty after completing 2 years, 7 months, 2 days of creditable active service.
6. Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaigns Ribbons or Authorized) of his DD Form 214 does not show award of the Purple Heart.
7. There are no general orders in his service personnel records that show he was awarded the Purple Heart. There also is no evidence in his service personnel records that shows that he was treated for wounds as a result of hostile action in the RVN. His name is not listed on the Vietnam Casualty Roster.
8. Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not show he was wounded, and item 41 (Awards and Decorations) does not show award of the Purple Heart.
9. His complete Army Medical Treatment Records are unavailable for review.
10. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that he should be awarded the Purple Heart. He provided three SFs 600, which indicate he was treated for hearing loss and pain in both his ears. While the injuries to his ears are unfortunate, there is no evidence in the available records and he has not provided evidence that shows his injuries were the direct result of hostile action.
2. Lacking any corroborating evidence of record showing the he was treated for a wound/injury that was the direct result of or caused by enemy action, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.
3. Regrettably, in view of the foregoing, there is insufficient evidence that would warrant granting his request.
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) AR20100023910
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ABCMR Record of Proceedings (cont) AR20100023910
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