IN THE CASE OF:
BOARD DATE: 1 March 2012
DOCKET NUMBER: AR20110017157
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. He states he was struck on the right side of the head just above his ear by what he believed to be a large piece of metal during a mortar attack. He was told he was initially unconscious for 1 1/2 hours. After treatment he was sent back to his unit because he possessed a critical military occupational specialty (MOS). Over the next several days he continued to experience seizures and later he was hospitalized for about 8-10 days for tests and x-rays and was put on medication.
3. He provides a Letter of Appreciation and a Department of Veterans Affairs (VA) compensation letter.
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. His military records show he enlisted in the Regular Army on 9 October 1964. He was awarded the MOS 62E (construction machine operator) and was promoted to the rank of specialist four/pay grade E-4.
3. His DA Form 20 (Enlisted Qualification Record) shows he performed duties as a dump truck driver during his tour of duty in the Republic of Vietnam during the period 2 August 1965 to 27 July 1966.
4. He was honorably released from active duty on 6 October 1967 and he was transferred to the U.S. Army Reserve Control Group (Reinforcement). He was credited with completion of 2 years, 11 months, and 28 days of active service.
5. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) does not list the Purple Heart.
6. Item 40 (Wounds) of his DA Form 20 is blank. Item 41 (Awards and Decorations) does not list the Purple Heart.
7. His records do not contain any evidence that indicates he was ever awarded the Purple Heart.
8. The Vietnam casualty list does not contain his name.
9. A Standard Form 88 (Report of Medical Examination) states he had documented seizures (came on spontaneously in August 1965 while in Vietnam) which began in the left occipital area. There is no mention of any injury. His complete medical records are not available for review.
10. Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained as a result of hostile action. Substantiating evidence must be provided to verify 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 he was wounded by a projectile during a mortar attack which required ongoing medical attention, in part, due to seizures. However, there is no evidence the seizures were related to an injury. As such, there is no evidence in his available military records and he has provided no evidence to show he was injured as a result of hostile action, treated for such a wound, or that the medical treatment was made a matter of official record.
2. His DA Form 20 does not show he was wounded and his name is not listed on the Vietnam casualty listing.
3. In the absence of evidence to show he was wounded or injured as a result of hostile action and treated for such wounds, there is insufficient evidence upon which to base award of 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) AR20110017157
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ABCMR Record of Proceedings (cont) AR20110017157
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