IN THE CASE OF:	  

		BOARD DATE:	  29 August 2013

		DOCKET NUMBER:  AR20130001274 


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 recently learned that the Army will allow battlefield concussions to be eligible for a Purple Heart.  He was driving an armored personnel carrier (APC) on 20 April 1969 in Vietnam when he hit a land mine.  The explosion caused two of the gunners on the APC to receive shrapnel.  He received injuries inside the APC which caused him to lose consciousness.  He later became disoriented with a headache and dizziness.  After this injury he was returned to base camp to rest and recuperate for two days before rejoining his platoon.  The enclosed letters from fellow Soldiers of his platoon verify he was the driver of the APC that hit a land mine.  Also, the enclosed USA Today newspaper article he recently received brought to his attention the new rule about the Army's decision to expand the definition for awarding the Purple Heart.

3.  The applicant provides copies of two letters in support of his request and an USA Today 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 7 February 1968 and he held military occupational specialty 11B (Light Weapons Infantryman).  He served in Vietnam with Troop C, 3rd Squadron, 5th Cavalry Regiment, from 13 July 1968 through 3 July 1969.  

3.  He was honorably released from active duty in pay grade E-5 on 22 December 1969 and was transferred the U.S. Army Reserve.  He completed 1 year, 10 months, and 16 days of net active service with no time lost.  His DD Form 214 lists the:

* National Defense Service Medal
* Combat Infantryman Badge
* Vietnam Service Medal with two bronze service stars
* Vietnam Campaign Medal
* 1st Class Gunner Qualification Badge with M-60 and Machine Gun Bars
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-14)

4.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not reflect he was wounded or injured as a result of hostile action.  Item 41 (Awards and Decorations) of this form lists the same awards as shown on his DD Form 214 with the inclusion of one overseas service bar and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

5.  His medical records are not available for review with this case and there is no evidence in his service personnel record showing he was wounded during his period of service in Vietnam.  

6.  The Vietnam casualty listing does not show his name.

7.  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.

8.  He provides copies of two letters of support wherein the individuals stated they served with the applicant in Vietnam in March 1969 and the applicant was the driver of their APC when it hit a land mine.  The applicant was thrown around inside the driver's hatch and was knocked unconscious.  They remember the applicant talking about his knees hurting and limping for a long time after this mine explosion.

9.  He also provides a copy of an USA Today newspaper article which pertains to a review of the Army’s policies on the Purple Heart and called for new guidelines for denial of the Purple Heart to some Soldiers who sustained concussions.  

10.  Army Regulation 600-8-22 (Military Awards) states:

   a.  The Purple Heart is awarded for a wound sustained while 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 by medical personnel, and the medical treatment must have been made a matter of official record.

	b.  The regulation also states that when contemplating an award of the Purple Heart the key issue commanders must take into consideration is the degree to which the enemy caused the injury.  The regulation further provides for award of the Purple Heart to individuals who sustain an injury caused by an enemy placed mine or trap or concussion injuries caused as a result of enemy generated explosions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and the evidence submitted were carefully considered.  However, the regulatory burden of proof necessary to support award of the Purple Heart for a battlefield concussion during his period of service in Vietnam has not been satisfied in this case.

2.  The regulation governing award of the Purple Heart specifically states that in order to support award of the Purple Heart, there must be evidence confirming the wound for which the award is being made was received as a direct result of, or was caused by enemy action, that the wound was treated by medical personnel, and a record of this treatment must have been made a matter of official record.

3.  His service record is void of any evidence that shows he was wounded or injured as a result of combat during his period of service in Vietnam.  His name does not appear on the Vietnam casualty listing and his DA Form 20 does not indicate he received a combat related wound.  Additionally, his medical records, which are necessary to confirm that treatment was required, are not available for review.  Further, he acknowledges that he did not receive treatment, only that he returned to base camp to rest and recuperate. 

4.  Notwithstanding his 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.  Therefore, he is not entitled to award of the Purple Heart and its addition to his DD Form 214.

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)                                         AR20130001274





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ABCMR Record of Proceedings (cont)                                         AR20130001274



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