IN THE CASE OF:	  

		BOARD DATE:	  31 January 2013

		DOCKET NUMBER:  AR20120012104 


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 bombed with mortars and rockets in Vietnam.   He experienced extreme noise and shock waves from the explosions.  His doctor says he has a permanent brain concussion.  

3.  The applicant provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 27 November 1968
* an article printed from the online Army News Service regarding award of the Purple Heart for concussive or mild traumatic brain injuries

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.  He enlisted in the Regular Army on 29 November 1965.  He completed basic combat and advanced individual training and was awarded military occupational specialty 62E (Crane Shovel Operator).

3.  He served in the Republic of Vietnam from 24 March 1967 to 23 March 1968. He was assigned to:

* Company D, 815th Engineer Battalion (Construction) from 24 March to 
23 November 1967
* Company D, 589th Engineer Battalion (Construction) from 24 November 1967 to 21 March 1968

4.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not contain any entries.  His service medical records were not available for review.

5.  On 27 November 1968, he was released from active duty.  He completed 
2 years, 11 months, and 29 days of active service that was characterized as honorable.  His DD Form 214 does not show he was awarded the Purple Heart and there are no orders in his Military Personnel Records Jacket (MPRJ) for this award.

6.  His name is not listed on the Vietnam Casualty Listing.

7.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders awarding him the Purple Heart.

8.  The article he submitted addresses reconsideration for the award of the Purple Heart for those Soldiers whose injury occurred on or after 11 September 2001.

9.  Army Regulation 600-200 (Enlisted Personnel Management System), 
chapter 9 of the version in effect at the time, stated that a brief description of wounds or injuries (including injury from gas) requiring medical treatment that were received through hostile or enemy action, including those requiring hospitalization, would be entered in item 40 of the DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in item 40.

10.  Army Regulation 672-5-1 (Decorations and Awards), then in effect, stated the Purple Heart was awarded to any member of the Armed Forces of the United States and to any civilian citizen of the United States serving with the Army who was wounded either in action against an armed enemy of the United States or as a direct result of an act of such enemy, provided the wound necessitated treatment by a medical officer.  For the purpose of considering an award of this decoration, a "wound" was defined as an injury to any part of the body from an outside force or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.  A physical lesion was not required, provided the concussion or other form of injury received was directly due to enemy action and required treatment by a medical officer.  

11.  Military Personnel (MILPER) 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.  He has provided no evidence of a diagnosis of his injury or that his concussion was directly due to enemy action.  He provided no evidence that he was treated for his injury by a medical officer.  His service medical records were not available for review.

2.  Item 40 of his DA Form 20 did not contain any entries showing wounds or injuries requiring medical treatment that were received through hostile or enemy action.

3.  He is not listed on the Vietnam Casualty Listing.

4.  Further, the current guidance concerning award of the Purple Heart for concussive/traumatic brain injuries is not retroactive earlier than 11 September 2001.

5.  Regrettably, in view of the above there is an insufficient basis to award the Purple Heart in this case.
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.  




      _______ _   _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)                                         AR20120012104





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ABCMR Record of Proceedings (cont)                                         AR20120012104



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