IN THE CASE OF:	  

		BOARD DATE:	    15 October 2013

		DOCKET NUMBER:  AR20130002867 


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 Purple Heart may be awarded for traumatic brain injury (TBI).  He was involved in a combat incident in Vietnam when an enemy blockade led to his face being thrust into the steering wheel and the dislodgement of several teeth.  The Department of Veterans Affairs (VA) ultimately awarded him service-connected disability compensation for TBI as well as post-traumatic stress disorder (PTSD).  He served with the 630th Transportation Company hauling material in support of the war effort in Vietnam.

3.  The applicant provides a VA notice of disagreement. 

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 enlisted in the Army National Guard (ARNG) on 7 January 1964 and he held military occupational specialty 64B (Light Vehicle Driver).  He was released from the ARNG on 6 April 1966 and transferred to the U.S. Army Reserve Control Group to complete his remaining service obligation.  

3.  He was ordered to active duty on 13 May 1968 and subsequently served in Vietnam from 13 September 1968 to 22 June 1969.  He was assigned to the 630th Transportation Company (Medium Truck).  

4.  He was honorably released from active duty on 28 June 1969.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) does not list the Purple Heart. 

5.  There is no evidence of record that shows he was injured or wounded as a result of hostile action or that he was awarded the Purple Heart.  Nothing in several typical sources show he was wounded/injured as a result of hostile action:

	a.  Item 40 (Wounds) of his contemporaneous DA Form 20 (Enlisted Qualification Record) does not show a combat wound or injury.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9, stated a brief description of wounds or injuries (including injury from gas) requiring medical treatment 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.

	b.  A review of the Awards and Decorations Computer Assisted Retrieval System maintained by the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders for the Purple Heart pertaining to him.

	c.  His name is not shown on the Vietnam casualty listing.  This is a Microfiche Listing of Vietnam Era Casualties that is used to verify entitlement to the Purple Heart. 

	d.  His records do not contain an official Army message or a Western Union telegram notifying his next of kin of an injury or wound.  This was the proper notification of injuries at the time. 

	e.  His medical records are not available for review with this case.  

6.  He provides a notice of disagreement from the VA in relation to an evaluation in excess of 30 percent for PTSD and in excess of 10 percent for TBI. 

7.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained while in action against and 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.

	a.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:  injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by 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.

	b.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows:  frostbite or trench foot injuries; heat stroke; food poisoning not caused by enemy agents; chemical, biological, or nuclear agents not released by the enemy; battle fatigue; disease not directly caused by enemy agents; accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; self-inflicted wounds, except when in the heat of battle and not involving gross negligence; post-traumatic stress disorders; and/or jump injuries not caused by enemy action.

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 orders that show he was awarded the Purple Heart or that he was wounded or injured as a result of combat.  His name is not listed on the Vietnam casualty listing.  His medical records are not available for review with this case.  There is nothing in multiple typical sources that confirm he was wounded as a result of hostile action or that he required treatment by medical personnel.


3.  He refers to his VA award of service-connected disability compensation for PTSD and TBI.  However, nowhere does it show these were caused by the enemy.  Additionally, there is no evidence in his records of an accident or who/what caused the accident or that he required treatment. 

4.  The applicant's contention, sincerity, and most importantly, his integrity are not in question.  However, in the absence of documentation that conclusively shows he was wounded or injured as a result of enemy action and treated for those wounds, there is an insufficient evidentiary basis for awarding him the Purple Heart.

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)                                         AR20130002867



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ABCMR Record of Proceedings (cont)                                         AR20130002867



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