IN THE CASE OF:	   

		BOARD DATE:	  17 July 2012

		DOCKET NUMBER:  AR20120002119 


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.  The applicant states he was told repeatedly that his hearing loss would go away in time and he hoped that was the case.  After returning from Vietnam, he realized that the condition would not go away and it would get worse over time.  He regrets that he did not pursue a Purple Heart, care, or compensation at that time.  It is now time to redress this error and make a fair and just award.

3.  The applicant provides:

* Letter from the Vietnam Veterans of America
* Two self-authored statements
* Declassified Division Operational Report and Lessons Learned
* DA Form 1594 (Daily Staff Journal or Duty Officer's Log)
* Casualty Report Log
* Obituary of Soldiers killed in action
* Newspaper article

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 3 December 1968 and he held military occupational specialty 11B (Light Weapons Infantryman).  

3.  He served in Vietnam from 11 July 1969 to 10 July 1970.  He was assigned to Company A, 2nd Battalion, 1st Infantry, 196th Infantry Brigade.  

4.  He was honorably released from active duty on 10 July 1970 and transferred to the U.S. Army Reserve.  His DD Form 214 does not list the Purple Heart. 

5.  There is nothing in the following five typical sources to confirm he was wounded in action and/or treated for a combat injury/wound:

* Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not reflect a combat wound or injury
* Item 41 (Awards and Decorations) of his DA Form 20 does not show award of the Purple Heart
* His records do not contain general orders authorizing him award of the Purple Heart 
* His name is not shown on the Vietnam casualty roster
* A review of the Awards and Decorations Computer Assisted Retrieval System - an index of general orders issued during the Vietnam era between 1965 and 1973 and maintained by the U.S. Army Human Resources Command - failed to reveal Purple Heart orders for him
* Additionally, his medical records are not available for review with this case

6.  He provides:

	a.  A statement, dated 22 December 2011, from an official at the Vietnam Veterans of America.  The official opines that the applicant is entitled to the Purple Heart as a result of his invisible, untreatable wounds of severe bilateral hearing loss.  This injury occurred on 1 January 1970 near Hiep Duc, Vietnam, during a sapper attack.  No paperwork was entered regarding his hearing loss.  The official also states the applicant described to her (the author of this statement) mortar rounds and rocket explosions leading to the destruction of his ability to hear, this is accompanied by tinnitus, which is nerve damage that cannot be repaired with treatment.  The battle resulted in many American Soldiers being killed or wounded.  As such, the medic was too busy to write down the applicant's complaint.  

	b.  Self-authored statement, dated 22 December 2011, wherein the applicant describes an attack that occurred on New Year's Eve in 1970.  He describes the attack in detail and concludes that the explosions, intense noise, grenades, missiles, rockets, and mortar rounds led to his ultimate service-connected disability rating by the Department of Veterans Affairs (VA).  The VA documents severe hearing loss in both ears and this condition has left him with poor communication skills which cannot be improved and has affected his employability since his return from Vietnam in 1970. 

	c.  A second self-authored statement, dated 22 December 2011, in which he describes two additional sapper attacks during his service in Vietnam.  He states he has experienced pain and ringing in his ears over the years and he relives those events to this day.

	d.  Division Casualty Report, Declassified Operational Report, Staff Journal or Officer's Log, and Casualty Report Log, documenting the events on 1 January 1970 and listing those Soldiers killed or wounded in action during the sapper attack on that day.  He also attached obituaries of some of the Soldiers who were killed.

	e.  Newspaper article about the dismissal/relief of a company commander of the 2nd Battalion, 1st Infantry, 196th Infantry Brigade, because enemy sappers slipped through his area during the New Year's cease fire, killing 8 American Soldiers and wounding 5 others. 

7.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained 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, and the medical treatment must have been made a matter of official record.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:  injury caused by an enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by an enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy generated explosions.




DISCUSSION AND CONCLUSIONS:

1.  The criteria for the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.

2.  The applicant's service record is void of any evidence that shows he was wounded or injured as a result of combat, his name is not listed on the Vietnam casualty roster, and his DA Form 20 does not indicate he received a combat related wound.  Additionally, his medical records which are necessary to confirm that he was injured and that treatment was required are not available for review. 

3.  Notwithstanding the applicant's contention and his sincerity, in the absence of additional documentation that conclusively shows he was wounded or injured as a result of enemy action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case.

4.  Unfortunately, one of the hazards of battle is great noise, from both the enemy and from friendly forces, and one of the problems with hearing loss is that there really is no treatment for it.

5.  The fact that he was awarded service-connected disability compensation by the VA is not sufficient to conclusively show he was wounded or injured as a result of hostile action or the source of this injury and/or whether treatment was required at the time.  Additionally, the fact that his hearing has gotten worse and has affected his employability is unfortunate.  However, it does not prove he was injured at the time to the degree required for award of the Purple Heart or that the enemy was the contributing factor to his injury or that the alleged injury required treatment. 

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)                                         AR20120002119



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ABCMR Record of Proceedings (cont)                                         AR20120002119



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