Search Decisions

Decision Text

ARMY | BCMR | CY2011 | 20120000074
Original file (20120000074.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:  5 July 2012

		DOCKET NUMBER:  AR20120000074 


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 he be awarded the Purple Heart.

2.  The applicant states while serving in Vietnam, he came under mortar and rocket attack and was injured.  He is rated 50% disabled for service-connected migraine headaches by the Department of Veterans Affairs (VA).

3.  The applicant provides:

* a VA rating decision
* a DA Form 8-274 (Medical Condition – Physical Profile Record), dated 22 March 1968
* a DA Form 8-274 (Medical Condition – Physical Profile Record), dated 26 June 1968
* a statement, dated 11 November 1968 for replacement of government issue items lost in a 27 September 1968 mortar and rocket attack

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 for 2 years on 11 April 1967.  He was trained in military occupational specialty (MOS) 51B (Carpenter).  He was transferred to Vietnam and assigned to the 815th Engineer Battalion (Construction).  He served in Vietnam from on or about 14 October 1967 to on or about 11 November 1968.  He was honorably separated on 15 November 1968.

3.  The applicant's records show the Purple Heart:

* is not listed on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* is not listed on his DA Form 20 (Enlisted Qualification Record)
* is not listed on orders in his DA Form 201 (Military Personnel Records Jacket)

4.  The applicant's service medical treatment records are not available; however, he provides two DA Forms 8-274, dated 22 March and 26 June 1968, showing restricted duty for migraine headaches.

5.  The applicant also provides evidence relating to a mortar and rocket attack on 27 September 1968 which states:

On or about 27 September 1968 at about 2330 hours, we came under a mortar and rocket attack.  The NCO barracks where I lived took a direct hit and caught fire and burned to the ground.  The only thing I saved were [sic] one suitcase and camera equipment.  My uniforms and misc. clothes were burned.  I was reissued just what was needed for my last few days [in country].

6.  The VA in 2009 awarded the applicant a 50% disability rating for service-connected migraine headaches.

7.  Army Regulation 600-8-22 (Military Awards) states 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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was wounded in a 27 September 1968 mortar and rocket attack in Vietnam.  He implies his 50% VA disability rating for migraines is attributed to this mortar and rocket attack.  However, the applicant was on a restricted duty profile as early as 22 March 1968 for migraine headaches; the mortar and rocket attack did not cause his migraines.

2.  The applicant's records contain no evidence he was wounded in action or awarded 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)                                         AR20120000074





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120000074



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

Similar Decisions

  • ARMY | BCMR | CY2010 | 20100015593

    Original file (20100015593.txt) Auto-classification: Denied

    Application for correction of military records (with supporting documents provided, if any). The applicant states he was attached to the 9th Infantry Division in Vietnam when, in February 1969, his company came under rocket attack and the unit's fuel tanks were hit causing a massive fire. While we were fighting the fire the company bunker came under mortar attack again.

  • ARMY | BCMR | CY2012 | 20120020053

    Original file (20120020053.txt) Auto-classification: Denied

    d. The applicant contends that he has found certain existing and new evidence of record via statements made by various medical officers. A DA Form 8-118, dated 11 May 1971, reports that an MEB determined the applicant was unfit for duty due to vascular headaches and recommended his presentation to a PEB. The applicant contends that his medical condition has worsened and the VA currently rates him as 50-percent disabled; therefore, his U.S. Army disability rating should now be raised accordingly.

  • ARMY | BCMR | CY2015 | 20150004142

    Original file (20150004142.txt) Auto-classification: Denied

    In his request for reconsideration, he stated: * he sustained a concussion in Vietnam and was sent to Japan to recover from this concussion * he was not sent back to Vietnam because of the medical issues with hearing loss, headaches, and post-traumatic stress disorder (PTSD) which are all service-connected * he was given a permanent physical profile and upon returning stateside, he was assigned to supply, then finance, then special services * he was also treated at Fort Meade, MD for ears,...

  • ARMY | BCMR | CY2014 | 20140001715

    Original file (20140001715.txt) Auto-classification: Denied

    The applicant states: * he was injured on 24 July 2009; he was present and physically located within 15 meters of the impact zone of several enemy mortar rounds * he was involved in an enemy indirect mortar attack that set ablaze a lithium battery warehouse * the incident caused him internal injuries and concussion injuries as a result of an enemy-generated explosion * HRC stated he did not meet the criteria for award of the Purple Heart because he was responding to an enemy attack rather...

  • ARMY | BCMR | CY2014 | 20140017020

    Original file (20140017020.txt) Auto-classification: Denied

    The communications center where the applicant was assigned was also under attack and explosions were occurring all around them. Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained as a result of hostile action. Based on these statements, it appears the applicant ran from the communications center during the mortar fire attack and ran into the wall surrounding the building and knocked himself unconscious.

  • ARMY | BCMR | CY2009 | 20090002864

    Original file (20090002864.txt) Auto-classification: Denied

    There is no evidence in the available records which show that the applicant was awarded the Purple Heart or was wounded as a result of hostile action in Vietnam. In the absence of orders or other evidence of record showing that the applicant was injured or treated for wounds as a result of hostile action in Vietnam, the statements provided by the applicant are not sufficient as a basis for award of the Purple Heart. Even the applicant's former first sergeant only stated that the applicant...

  • ARMY | BCMR | CY2010 | 20100017162

    Original file (20100017162.txt) Auto-classification: Denied

    Counsel requests the applicant be awarded the Purple Heart. He contends the previous decision by the Army Board for Correction of Military Records (ABCMR) is in error because it identified an entry on the SF 600 with a date of 15 July 1968, when it was actually 15 June 1968. In support of this application, the applicant's counsel provided an SF 502, a DA Form 8-274, and a letter addressed to the applicant's Representative in Congress as new evidence which was not previously considered by...

  • ARMY | BCMR | CY2011 | 20110004887

    Original file (20110004887.txt) Auto-classification: Denied

    Application for correction of military records (with supporting documents provided, if any). The former fellow Soldier stated: * a rocket penetrated the bunker in the applicant's sleeping area * the applicant was not seriously injured in the attack * he assessed the applicant's injuries and determined he didn't need medical care beyond his own medical treatment and bandaging * he failed to complete a Field Medical Card for the applicant's injuries * he provided a copy of his own DD Form 214...

  • ARMY | BCMR | CY2006 | 20060009353C070205

    Original file (20060009353C070205.doc) Auto-classification: Approved

    Medivac.” e. a DA Form 2173, Statement of Medical Examination and Duty Status, which shows that the applicant sustained an inner ear injury to the right ear as a result of a mortar explosion on 7 September 2003 when the applicant was on guard duty in Tower #2. f. numerous treatment records showing that the applicant was treated for blast induced damage to his right ear. On 9 September 2003, the applicant was treated for loss of hearing in the right ear due to a mortar attack on 7 September...

  • ARMY | BCMR | CY2010 | 20100025566

    Original file (20100025566.txt) Auto-classification: Denied

    However, contemporaneous medical evidence shows he had right knee problems (torn cartilage, right knee and recurrent dislocation, patella, right knee) prior to serving in Vietnam, and medical records from Camp Zama, Japan, show his right knee condition as EPTS. There is no evidence of record and the applicant did not provide any evidence 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...