IN THE CASE OF:	  

		BOARD DATE:	    25 October 2011

		DOCKET NUMBER:  AR20110008287 


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 based on a traumatic brain injury (TBI).

2.  The applicant states there are recent changes in Army regulations for award of the Purple Heart to Soldiers with TBI.

3.  The applicant provides no documentary evidence.

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 enlisted in the Regular Army on 18 October 1966 for a period of 3 years.  He completed his training and he was awarded military occupational 
specialty 11B (light weapons infantryman).  He attended the Officer Candidate Course from March 1967 to September 1967 and he was honorably discharged on 18 September 1967 to accept a commission as an officer in the Army.

3.  He was commissioned a second lieutenant in the U.S. Army Reserve (USAR) on 19 September 1967 with concurrent call to active duty.  He served as a field artillery unit commander in Vietnam from 12 September 1968 to 15 September 1969.  On 31 December 1973, he was released from active duty and he was transferred to the USAR Control Group (Standby).

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 for the period ending 31 December 1973 does not show the Purple Heart as an authorized award.

5.  There are no orders for the Purple Heart in the available records.

6.  Item 21 (Awards and Decorations) of his DA Form 66 (Officer Qualification Record) does not show the Purple Heart.  His name does not appear on the Vietnam casualty roster.

7.  A 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.

8.  On 15 November 1973, he underwent a separation physical examination which makes no mention of any injuries or wounds sustained as a result of hostile action in Vietnam.  He indicated he was in "good health" and that he had a neck injury in June 1972.

9.  He was appointed a captain in the Army National Guard on 1 December 1975.  On 31 March 1978, he was separated from the Army National Guard and he was transferred to the USAR Control Group (Reinforcement).  He was discharged from the USAR Ready Reserve on 20 January 1982. 

10.  There is no evidence which shows he suffered a TBI as a result of hostile action.

11.  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 military personnel, and the medical treatment must have been made a matter of official record.

12.  Military Personnel (MILPER) Message Number 11-125, issued by the U.S. Army Human Resources Command, Fort Knox, KY, dated 29 April 2011, informed all members of the Army that the Secretary of the Army had approved Army Directive 2011-07 (Awarding the Purple Heart).  The directive provides clarifying guidance to ensure the uniform application of advancements in medical knowledge and treatment protocols when considering recommendations for award of the Purple Heart for concussions (including mild traumatic brain and concussive injuries that do not result in a loss of consciousness).  This message does not change the standards for award of the Purple Heart for concussion injuries.  This policy is retroactive to 11 September 2001.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests award of the Purple Heart for a TBI.  However, there is no evidence of record and he did not provide any evidence that shows he suffered a TBI as a result of hostile action or at any time during his military service.

2.  There is no evidence of record that shows he was wounded or injured as a result of hostile action in Vietnam.  Therefore, there is insufficient evidence to support award of the Purple Heart in this case.

3.  His contention that there were recent changes in Army regulations for award of the Purple Heart to Soldiers with TBI is confirmed by MILPER Message Number 11-125.  However, this policy is only retroactive to 11 September 2001.

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

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)                                         AR20110008287



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ABCMR Record of Proceedings (cont)                                         AR20110008287



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