BOARD DATE:	  18 August 2011

		DOCKET NUMBER:  AR20110002451 


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 while serving with Company A, 2nd Battalion,
1st Infantry, 196th Light Infantry Brigade in the Republic of Vietnam (RVN) he sustained a perforated tympanic membrane of his right ear.  He adds his medical record shows it was an "old injury;" however, it was not an old injury because he sustained the wound while in battle and he is entitled to the Purple Heart.

3.  The applicant provides a copy of a DA Form 8-275-3 (Clinical Record Cover Sheet).

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 was inducted into the Army of the United States on 26 April 1967.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

	a.  item 31 (Foreign Service) he served in the RVN from 29 September 1967 through 25 September 1968;

	b.  item 38 (Record of Assignments) he was assigned to Company A,
2nd Battalion, 1st Infantry, 196th Light Infantry Brigade, from 3 November 1967 through 21 September 1968;

	c.  item 40 (Wounds) no entry (blank); and

	d.  item 41 (Awards and Decorations) no listing of the Purple Heart.

4.  A DA Form 8-275-3 shows the applicant was admitted to the 95th Evacuation Hospital (Surgical Mobile) on 25 June 1968; diagnosed with a "perforated tympanic membrane right ear, old;" and transferred to the 6th Convalescent Center, RVN on 2 July 1968.

5.  A DA Form 8-275-3 shows the applicant was admitted to the
6th Convalescent Center on 3 July 1968; diagnosed with a "perforated tympanic membrane (right) ear (old injury);" and returned to duty on 11 July 1968.

6.  A Standard Form (SF) 89 (Report of Medical History), dated 14 February 1969, completed by the applicant at the time of his separation examination shows in response to:

	a.  item 33 (Have You Ever Had Any Illness Or Injury Other Than Those Already Noted?) the applicant placed a checkmark in the "Yes" column and added the entry "Had ear puncture in Vietnam from loud explosion"; and

	b.  the applicant and examining physician each placed their signature on the document on 14 February 1969.

7.  An SF 88 (Report of Medal Examination), dated 14 February 1969, shows the examining medical doctor found the applicant qualified for separation.  Item 73 (Notes and Significant or Interval History) and item 74 (Summary of Defects and Diagnoses) do not show any entries.


8.  The applicant was honorably released from active duty (REFRAD) on 25 April 1969 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued at the time of his REFRAD shows he completed 2 years of total active service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) does not show the Purple Heart.

9.  A review of the applicant's military personnel record failed to reveal any evidence he was authorized or awarded the Purple Heart.

10.  A review of the Vietnam casualty listing does not contain the applicant's name.

11.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam-era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant.

12.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.  The Purple Heart is awarded to any member who was wounded or killed in action.  A wound is defined as an injury to any part of the body from an outside force, element, or agent sustained in action in the face of the armed enemy or as a result of a hostile act of such enemy.  In order to support awarding a member the Purple Heart, it is necessary to establish the wound for which the award is being made required treatment by medical personnel and the medical treatment for the wound or injury received in action must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his medical record should be corrected to delete the reference to "old injury" and he should be awarded the Purple Heart because he was wounded while serving in the RVN when he sustained a perforated tympanic membrane of his right ear from a loud explosion.

2.  The applicant began a tour of duty in the RVN on 29 September 1967 and he served through 25 September 1968.


	a.  There is no evidence of record, and the applicant provides insufficient evidence, as to the exact date the applicant actually sustained a perforated tympanic membrane of his right ear.

	b.  The available record shows he was treated for this injury on 25 June 1968.

	c.  The fact that the applicant sustained the injury while serving in the RVN is not in dispute; however, the exact date and origin of its occurrence cannot be ascertained from the available evidence.

	d.  Thus, there is insufficient evidence to delete the reference to "old" injury that is recorded on the two medical record documents in question.

3.  The applicant's claim to the Purple Heart was carefully considered.

	a.  The applicant's medical record shows he was treated for a perforated tympanic membrane of his right ear that he sustained from a loud explosion. However, this evidence alone is insufficient to satisfy the strict requirement for award of the Purple Heart.

	b.  There is no evidence the injury was sustained in action in the face of the armed enemy or as a result of a hostile act of such enemy [emphasis added].

	c.  In addition, the applicant's name is not listed on the Vietnam casualty listing and there is no evidence the applicant was awarded the Purple Heart.

4.  The sincerity of the applicant's claim is not in question.  However, in order to support awarding a member the Purple Heart, it is necessary to establish the wound for which the award is being made was sustained in action in the face of the armed enemy or as a result of a hostile act of such enemy; the wound required treatment by medical personnel; and the medical treatment for the wound or injury must have been made a matter of official record.  The evidence of record fails to satisfy the criteria.

5.  In view of all of the foregoing, there is insufficient evidence to support the applicant's claim to the Purple Heart.

6.  The applicant and all others concerned should know this action 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)                                         AR20110002451



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ABCMR Record of Proceedings (cont)                                         AR20110002451



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