BOARD DATE:	  9 July 2013

		DOCKET NUMBER:  AR20120021351 


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, through a Member of Congress (MOC), requests reconsideration of his earlier petition for award of the Silver Star and two Purple Hearts.

2.  The applicant states:

   a.  He was hit by a grenade fragment in the field in Vietnam.  He was medically evacuated by helicopter and spent time in the hospital at An Key, Vietnam, and was told he would receive the Purple Heart, but he never did.

   b.  Later, while in the field, artillery from a battleship rained dirt and fragments upon him.  A big chunk hit the tree he was behind, and he was hit in the head.  The bleeding was stopped and patched and he was returned to the war. 
   
   c.  The Department of Veterans Affairs (VA) recently awarded him 40 percent disability compensation for his head wound.  The award letter states, "Status post concussive head injury claimed as traumatic brain injury (TBI) due to shrapnel to head, dementia due to TBI, and head injury with possible memory loss."
   
   d.  He believes the Department of the Army should operate like the VA since he is a combat veteran who was awarded the Combat Infantryman Badge and take his word.
   
   e.  As a "white guy" he was discriminated against by his black platoon sergeant who requested a black Soldier receive the Silver Star instead of him.  
3.  The applicant provides:

* a self-authored statement
* a letter to a MOC
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings
* 2 letters from the VA
* VA Rating Decision

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120004508, on 30 August 2012.

2.  The applicant was advised in the Board's decision on 30 August 2012 that he had not exhausted administrative remedies available to him at a lower level concerning his request for award of the Silver Star.  In its proceedings, the Board advised him that under the provisions of Title 10, U.S. Code, Section 1130, the U.S. Army will review a proposal for the award of, or upgrading of, a decoration that is not authorized based upon the 2-year statute of limitation.  The applicant's record clearly did not contain evidence he was awarded the Silver Star, and the onus is on the applicant to initiate a proper award recommendation.  A request for award of the Silver Star must be supported by sworn affidavits, eyewitness statements written at the time of the incident, certificates and related historical documents.  Commanders, leaders and fellow Soldiers, who had personal knowledge of the circumstances and events relative to the applicant's heroic and valorous acts or service, best provide corroborating evidence.  The burden and costs for researching and assembling documentation to support award recommendations rests with the applicant.  In view of the foregoing, award of the Silver Star will not be addressed further in these proceedings. 

3.  The applicant provides two letters from the VA and a VA Rating Decision, dated 20 September 2012, which were not previously reviewed by the ABCMR.  Therefore, they are considered new evidence and as such, warrant consideration by the Board.

4.  The applicant enlisted in the Regular Army on 11 January 1966.  He successfully completed training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  He served in the Republic of Vietnam with Company B, 1st Battalion, 8th Cavalry Regiment for the period     14 July 1966 to 12 July 1967.  The highest rank/grade he attained while serving on active duty was sergeant/E-5.
5.  His record contains a DA Form 20 (Enlisted Qualification Record) that shows in:

* item 40 (Wounds) no entry (blank)
* item 41 (Awards and Decorations) no entry for award of the Purple Heart
* item 48 (Date of Audit) 7 February 1968

6.  On 20 December 1968, he was honorably released from active duty and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.   His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded the:

* National Defense Service Medal
* Vietnam Campaign Medal
* Vietnam Service Medal
* Combat Infantryman Badge

7.  The applicant's record is void of any orders or other documents that indicate he was recommended for or awarded the Purple Heart by proper authority while serving on active duty.  It also contains no medical records showing he was wounded as a result of hostile action or treated for such wounds.

8.  Review of The Adjutant General's Office, Casualty Division's Vietnam casualty listing does not show the applicant's name as a casualty.

9.  Review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant.

10.  As new evidence the applicant provides a letter and VA Rating Decision which provides for a service-connected disability rating for a post concussive head injury (claimed as TBI) due to shrapnel to the head, dementia due to TBI, and head injury with possible memory loss.

11.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards policy.  Paragraph 2-8 contains guidance on the Purple Heart.  It states the Purple Heart is awarded to members wounded in action and states that in order to award the Purple Heart, there must be evidence the wound for which the award is being made was received as a result of enemy action, the wound required treatment by military medical personnel, and a record of the medical treatment was made a matter of official record.  

12.  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.  The applicant's request for award of the Purple Heart (2nd Award) was carefully reconsidered and it was determined there is still insufficient evidence to support his request.

2.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for this decoration; rather, the individual is entitled to it upon meeting specific criteria.  Award of the Purple Heart requires a Soldier to have been injured or wounded by hostile action, the wound must have required treatment by medical personnel, and the medical treatment for wounds or injuries received in action must have been made a matter of official record.

3.  Item 40 of the applicant's DA Form 20 contains no entries which indicate he was wounded in action and the applicant audited this record on 7 February 1968, thereby acknowledging the information on the form was correct.  Furthermore, his name is not included on the Vietnam casualty listing, the official Department of the Army list of Vietnam battle casualties.  

4.  Notwithstanding the VA's rating decision which awards him disability for a post concussive head injury (TBI) due to shrapnel to the head, the recent changes in Army regulations for award of the Purple Heart to Soldiers with TBI is only retroactive to 11 September 2001.  An award of a VA rating does not establish entitlement to military awards or decorations.  

5.  The applicant's sincerity is not in question; however, although he claims he was wounded and in one instance medically evacuated, there is no evidence of record and he did not provide sufficient evidence that shows he was wounded or injured as a result of hostile action or treated for such wounds or that his treatment was made a matter of official record.  In the absence of such evidence, regrettably the regulatory burden of proof necessary to support award of the Purple Heart has not been met.

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 to amend the decision of the ABCMR set forth in Docket Number AR20120004508, dated 30 August 2012.




      _______ _  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)                                         AR20120021351





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ABCMR Record of Proceedings (cont)                                         AR20120021351



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