BOARD DATE: 10 April 2012
DOCKET NUMBER: AR20110020094
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 should be awarded the Purple Heart due to a traumatic brain injury.
3. He provides:
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a Mountain Vista Medical Center discharge instruction sheet on seizure disorder
* a magazine article about the Army rules changes regarding Purple Heart award for battle-field concussions
* a Department of Veterans Affairs (VA) Medical Center outpatient routing slip for the applicant
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 13 October 1966. He was awarded military occupational specialty 63H (automotive repairman) and was promoted to the rank of specialist five/E-5.
3. His DA Form 20 (Enlisted Qualification Record) shows he performed duties as a wheeled vehicle mechanic during his tour of duty in the Republic of Vietnam during the period 23 September 1967 to 3 March 1969.
4. He was honorably released from active duty on 10 October 1969 and he was transferred to the U.S. Army Reserve Control Group (Annual Training). He was credited with completion of 2 years, 11 months, and 28 days of active service.
5. His DD Form 214 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. He provided a copy of a discharge instruction sheet on seizure disorder indicating he had a seizure. The VA Medical Center outpatient routing slip he provided shows he was rated at 40 percent service connected disabled for a seizure disorder. The appointment date on the routing slip was 15 July 2010.
10. There is no evidence of a combat-incurred concussion in his records. His complete medical records are not available for review.
11. 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.
12. Military Personnel Message Number 11-125, issued by the U.S. Army Human Resources Command, dated 29 April 2011, stated 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 contends he received a traumatic brain injury while in Vietnam for which he should receive the Purple Heart based on revised Army rules. The Army clarifying guidance (the standards did not change) for considering recommendations for award of the Purple Heart for concussions is retroactive to 11 September 2001. As such, this guidance does not apply to the applicant.
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, treated for such wounds, or that the medical treatment was made a matter of official record 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.
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