BOARD DATE:	  10 January 2013

		DOCKET NUMBER:  AR20120010103 


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.  He also requests promotion to specialist five (SP5)/E-5.

2.  The applicant states he suffered injuries on 26 February 1969 when Viet Cong Special Forces overran Cu Chi, Vietnam.  He states new laws for award of the Purple Heart include traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD).  He further states he took and passed the test for promotion to SP5, but was medivaced to Japan and Letterman Hospital and never received the upgrade in pay.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Army Commendation Medal Certificate
* Veterans of Foreign Wars (VFW) Magazine 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.  His military records show he was inducted into the Army of the United States on 7 February 1968.  He was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  His DA Form 20 (Enlisted Qualification Record) shows during his tour of duty in Vietnam he served as a voucher assistant in duty MOS 73C (Finance Specialist) while assigned to the 25th Administration Company, 25th Infantry Division, from 25 July 1968 until he was assigned to the Medical Holding Company in a patient status on 15 August 1969.

4.  Item 31 (Foreign Service) of his DA Form 20 shows he served in Vietnam from 16 July 1968 through 15 August 1969.

5.  Item 33 (Appointments and Reductions) of his DA Form 20 shows the highest rank/grade he attained was SP4/E-4 effective 16 November 1968.

6.  Item 40 (Wounds) of his DA Form 20 does not list any wounds.

7.  He was honorably released from active duty on 10 September 1969 and he was transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining Reserve obligation.  He completed a total of 1 year, 7 months, and 4 days of active service.

8.  His DD Form 214 does not show award of the Purple Heart.

9.  His records are void of any orders or other documents that indicate he was ever awarded the Purple Heart by proper authority or that he was injured as the result of hostile action.  Additionally, his records are void of any evidence he sustained a concussion injury or was diagnosed with a TBI or PTSD related to his military service.

10.  His name does not appear on the Vietnam casualty list.

11.  He submits a VFW Magazine article related to an attack on Cu Chi Airfield in Vietnam on 26 February 1969.

12.  His records are void of any evidence that he was selected for promotion to or promoted to SP5/E-5.

13.  Army Regulation 600-8-22 (Military Awards) provides that 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.

14.  Military Personnel (MILPER) Message Number 11-125, issued by the U.S. Army Human Resources Command, Fort Knox, KY, dated 29 April 2011, informed all members of the Army that 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.  He contends he was injured on 26 February 1969.  However, his name is not listed on the Vietnam casualty roster and his DA Form 20 does not show he was wounded in action.

2.  His DA Form 20 shows he was placed in a patient status on 15 August 1969 while serving in Vietnam, 6 months after the attack on Cu Chi Airfield.  However, the reason for his patient status is unknown to the Board.  There is no evidence he was diagnosed with TBI or PTSD due to his service in Vietnam.

3.  In the absence of evidence to show he was wounded or injured as a result of hostile action, treated for such wound/injury, and the injury/wound was made a matter of official record, there is insufficient evidence upon which to base award of the Purple Heart.  As a result, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.

4.  His contention that there were recent changes in Army regulations for award of the Purple Heart to Soldiers with TBI is confirmed by MILPER Message Number 11-125.  However, this policy is only retroactive to 11 September 2001.

5.  There are no orders or other evidence showing he was ever selected for promotion to or promoted to SP5/E-5.  As such, there is no basis for correcting his record to show this rank or for providing back pay for pay grade E-5.

6.  In view of the foregoing, there is an insufficient basis for granting the applicant's request.

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 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)                                         AR20120010103



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ABCMR Record of Proceedings (cont)                                         AR20120010103



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