IN THE CASE OF:	  

		BOARD DATE:	  1 March 2012

		DOCKET NUMBER:  AR20110016844 


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 and correction of his records to show this award.

2.  The applicant states he suffered a concussion and sustained a head/brain injury while serving in Vietnam.  The Department of Veterans Affairs (VA) has awarded him a 10 percent (%) disability rating percentage with compensation for the injury.  In April 2011, he learned that lawmakers authorized award of the Purple Heart for traumatic brain injuries (TBI).

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's records to show award of the Purple Heart.

2.  Counsel states the request for correction of records is submitted in support of the applicant's claim for veteran benefits.

3.  Counsel provides no additional documentary evidence in support of the applicant's claim.


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 1 July 1969.  He was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).

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

	a.  item 31 (Foreign Service) he served in Vietnam from 19 January through 14 March 1970;

	b.  item 38 (Record of Assignments) while serving in Vietnam he was assigned to Company C, 3rd Battalion (Airborne), 503rd Infantry, 173rd Airborne Brigade, from 23 January through 13 March 1970;

	c.  item 38 he was assigned to the Medical Holding Company, 106th General Hospital, Japan, in a patient status from 14 March to 31 March 1970;

	d.  item 40 (Wounds) no entry (item is blank); and

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

4.  A Standard Form 519-1 (Radiographic Report), undated, shows the applicant was seen at an "N-S" (Neurology) Clinic for "brain concussion 5 days ago; headaches since then" and that x-rays were "negative (for) skull."  It also shows he was assigned to Company C, 3rd Battalion, 503rd Infantry.  

5.  On 8 February 1971, the applicant was discharged under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unsuitability based on his inability to adapt to military life.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued at the time does not show the Purple Heart.

6.  A review of the applicant's military personnel record failed to reveal any evidence that shows he was recommended for or awarded the Purple Heart.

7.  Review of The Adjutant General's Office, Casualty Division's Vietnam casualty listing does not shows the applicant's name as a casualty.

8.  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.

9.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.  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.

10.  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).  Diagnosis of concussion or mild TBI are examples of signs, symptoms or medical conditions documented by a medical officer or medical professional that meet the standard for award of the Purple Heart.  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's claim to the Purple Heart was carefully considered.

	a.  The applicant's statement is non-specific as to the date of his injury.

	b.  He provides no corroborating medical records regarding his claim.

2.  The radiographic report in the applicant's record that was prepared while he was serving in Vietnam shows negative results for a skull injury.

3.  His service record is void of medical documents or other evidence which indicate he was wounded as a result of hostile action and his name is not listed on the Vietnam casualty listing.  In addition, award of the Purple Heart for TBI injuries is retroactive only to 11 September 2011.

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 or as a result of a hostile act of the enemy and that the wound required treatment by medical personnel.  The available evidence fails to satisfy this requirement.

5.  In view of the foregoing, there is an insufficient evidentiary basis to support the applicant's claim to the Purple Heart.

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)                                         AR20110016844



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110016844



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1