IN THE CASE OF:	  

		BOARD DATE:	  26 FEBRUARY 2009

		DOCKET NUMBER:  AR20080017432 


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, in effect, correction of his records to show award of the Purple Heart.

2.  The applicant states, in effect, he was awarded the Purple Heart in 1970 for bilateral high frequency hearing loss due to an explosion during training, but the award is not recorded on his discharge document.

3.  The applicant provides copies of a DA Form 3349 (Medical Condition - Physical Profile Record), dated 29 June 1970, and his DD Form 214 (Report of Separation from Active Duty) with an effective date of 19 November 1975.

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's military personnel records show he enlisted in the Regular Army (RA) and entered active duty for a period of 3 years on 27 June 1962. Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 131 (Armor Crewman).  The applicant was reclassified into MOS 11B (Light Weapons Infantryman) and subsequently into MOS 51R (Electrician) on 26 February 1972.

3.  The applicant's military personnel records contain a DA Form 20 (Enlisted Qualification Record).

	a.  Item 31 (Foreign Service) shows that he served in the U.S. Army Europe (USAREUR) in Germany from 15 January 1963 through 20 July 1963, the Republic of Korea (ROK) from 17 June 1965 through 16 July 1966, and in the Far East Pacific (FEPA) in the Republic of Vietnam (RVN) from 19 October 1967 through 13 October 1968 and from 30 December 1970 through 14 December 
1971.

	b.  Item 40 (Wounds) is absent an entry.

	c.  Item 41 (Awards and Decorations) fails to show he was authorized award of the Purple Heart.

4.  The applicant's military personnel records contain a DA Form 2-1 (Personnel Qualification Record).

	a.  Item 4 (Assignment Considerations) prescribes no assignment involving habitual or frequent exposure to loud noise or firing of weapons, not to include firing for processing for overseas replacement qualification with ear plugs.

	b.  Item 5 (Oversea Service) shows that he served in Germany from 15 January 1963 through 20 July 1963, in the ROK from 17 June 1965 through 16 July 1966, and in the RVN from 19 October 1967 through 13 October 1968 and from 30 December 1970 through 14 December 1971.

	c.  Item 9 (Awards and Decorations) fails to show he was authorized award of the Purple Heart.

5.  The applicant's military personnel records contain a copy of his DD Form 214 that shows he entered active duty on 27 June 1962.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Armed Forces Expeditionary Medal (Germany), Army of Occupation Medal with Germany Clasp (Berlin), and Marksman Marksmanship Qualification Badge with Rifle (M-1), Automatic Rifle (M-16), and Pistol (.45 caliber) Bars.  Item 27 (Wounds Received as a Result of Action with Enemy Forces) contains the entry "NA."  The DD Form 214 also shows the applicant was honorably discharged on 12 February 1964 for the purpose of his immediate reenlistment in the RA.  At the time he had completed 1 year, 7 months, and 17 days of net active service this period and 6 months and 5 days of foreign service.

6.  The applicant's military personnel records contain a copy of his DD Form 214 that shows he entered active duty this period on 13 February 1964.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows he was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, Combat Infantryman Badge, and 1 Overseas Service Bar.  The DD Form 214 also shows the applicant was honorably discharged on 19 November 1969 for the purpose of his immediate reenlistment in the RA.  At the time he had completed 5 years, 9 months, and 7 days of net active service this period; 1 year, 7 months, and 17 days of other service; 7 years, 4 months, and 24 days of total active service; and 2 years and 25 days of foreign service.

7.  The applicant's military personnel records contain a copy of his DD Form 214 that shows he entered active duty this period on 20 November 1969.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows he was awarded the Good Conduct Medal (3rd Award), National Defense Service Medal, Armed Forces Expeditionary Medal, Army of Occupation Medal with Germany Clasp, Vietnam Service Medal, Republic of Vietnam Campaign Medal, Combat Infantryman Badge, Drill Sergeant Insignia Badge, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  The DD Form 214 also shows the applicant was honorably discharged on 19 November 1975 based on expiration term of service.  At the time he had completed 6 years of net active service this period; 7 years, 4 months, and 24 days of prior active serve; 13 years, 4 months, and 24 days of total active service; and 11 months and 15 days of foreign service.

8.  There is no documentation in the applicant’s military personnel records that shows he was wounded or treated for wounds as a result of hostile action.  There is also no evidence that the applicant was admitted to a military hospital at any time during his two tours of duty in the RVN.  In addition, a review of the Adjutant General's Office Casualty Division's Vietnam casualty roster confirmed that the applicant’s name is not listed on the roster.

9.  A thorough review of the applicant’s military personnel records revealed that there are no orders in the applicant’s records that show he was awarded the Purple Heart.  In addition, a search of the U.S. Army Human Resources Command Awards and Decorations Computer Assisted Retrieval System for the Vietnam Conflict failed to produce orders showing award of the Purple Heart to the applicant.

10.  In support of his request, the applicant provides, in pertinent part, a copy of a DA Form 3349, dated 29 June 1970, that shows he was issued a permanent physical profile for bilateral high frequency hearing loss.

11.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  This Army regulation, in pertinent part, states that the Purple Heart is awarded for a wound sustained as a result of hostile action.  It also gives examples of enemy-related injuries, which justify award of the Purple Heart, which includes concussion injuries caused as a result of enemy generated explosions.  It also provides that substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.  This regulation also provides examples of injuries or wounds which clearly do not qualify for award of the Purple Heart and cites, in pertinent part, accidents involving explosive, aircraft, vehicular, and other accidental wounds or injuries not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge document should be corrected to show award of the Purple Heart because he received the award based on his bilateral high frequency hearing loss that was the result of an explosion during training.

2.  There is no evidence in the applicant’s military personnel records that shows he was wounded or treated for wounds as a result of hostile action; his DA Form 20 does not show an entry in item 40 or list the Purple Heart in item 41; his DA Form 2-1 does not list the Purple Heart in item 9; the applicant's name is not listed on the Adjutant General's Office Casualty Division's Vietnam casualty roster; and there are no orders in the applicant’s military personnel records or in the U.S. Army Human Resources Command Awards and Decorations Computer Assisted Retrieval System that show the applicant was awarded the Purple Heart.  In addition, there is no evidence in the applicant’s military service records that shows he was wounded as a result of hostile action, that such wound required treatment, or that the medical treatment was made a matter of official record.

3.  The applicant’s claim that he received the Purple Heart based on his bilateral high frequency hearing loss that was due to an explosion during training was carefully considered.  The applicant provides no official documentary evidence pertaining to the nature of the injury (e.g., medical treatment records, line of duty investigation, etc.) in support of his request.  In addition, the Military Awards regulation provides examples of injuries or wounds which clearly do not qualify for award of the Purple Heart and cites, in pertinent part, accidents involving explosive, aircraft, vehicular, and other accidental wounds or injuries not related to or caused by enemy action.  In this regard, the applicant states that his bilateral high frequency hearing loss was "due to an explosion during training."  Thus, the applicant provides insufficient evidence in support of his claim to the Purple Heart.  Therefore, in view of all of the foregoing, there is insufficient basis for awarding the Purple Heart to the applicant in this case.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.


2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      __________XXX____________
                 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)                                         AR20080017432



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ABCMR Record of Proceedings (cont)                                         AR20080017432



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