IN THE CASE OF:	  

		BOARD DATE:	  26 November 2013

		DOCKET NUMBER:  AR20130005166 


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 (PH).

2.  The applicant states he was never awarded the PH for all the injuries he had in combat.  He further states he was in the hospital when others in his unit received the PH.  

3.  The applicant provides:

* Newspaper article of a wounded Soldier
* DA Form 8-275-3 (Clinical Record Cover Sheet)
* Standard Form 513 (Clinical Record - Consultation Sheet)
* Standard Form 502 (Clinical Record - Narrative Summary)
* Standard Form 93 (Report of Medical History)
* Standard Form 88 (Report of Medical Examination)
* Standard Form 600 (Chronological Record of Medical Care)
* Audiometric Evaluation
* Hearing Conservation Data Form

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 is a retired master sergeant (MSG/E-8) who served in the Regular Army (RA) through multiple reenlistments between September 1961 and March 1984 in a variety of stateside or overseas assignments, including Germany and the Republic of Vietnam (RVN).

3.  On 31 March 1984, he was honorably retired and transferred to the USAR Control Group (Retired) in the rank/grade of MSG/E-8.  

4.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded or authorized the:

* Combat Infantryman Badge
* Vietnam Service Medal with one silver service star
* Air Medal
* National Defense Service Medal
* Republic of Vietnam Campaign Medal
* Bronze Star Medal
* Presidential Unit Citation
* four overseas service bars
* Army Commendation Medal with Bronze Oak Leaf Cluster
* Vietnam Cross of Gallantry with Palm Unit Citation (2nd Award)
* Drill Sergeant Identification Badge
* Good Conduct Medal (6th Award)
* Army Service Ribbon
* NCO Professional Development Ribbon with Number 3
* Overseas Service Ribbon (2nd Award)

5.  Item 5 (Oversea Service) of the applicant’s DA Form 2-1 (Personnel Qualification Record) shows he served in the RVN during the periods of 
16 August 1965 to 30 August 1966 and 7 September 1970 to 4 September 1971.

6.  There is no evidence in the applicant's record that shows he was injured or wounded as a result of hostile action or that he was awarded the PH.  Several typical sources failed to show he was wounded or injured as a result of hostile action:
	a.  His contemporaneous DA Form 20 (Enlisted Qualification Record) is not available for review with this case.  Item 40 (Wounds) of this form would have listed any combat injuries and the date.  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.  His name is not shown on the Vietnam casualty list.

	c.  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. 

7.  The applicant provides multiple service medical records, consultation sheets, records of treatment, and reports of medical history and examination which document his years on active duty; however, none of the medical documents show he sustained a combat injury as a result of hostile action.  These are: 

	a.  DA Form 8-275-3, dated 22 April 1966, shows he was admitted to the 106th General Hospital on 19 March 1966 after being transferred from the 85th Evacuation Hospital due to vertigo, caused by a blast and deafness in both ears.  This form shows the applicant's condition was incurred in line of duty but does not show it was caused by battle. 

	b.  Standard Form 502, dated 19 March 1966, shows he was injured by an exploding shell in the RVN on 17 February 1966.  He suffered bruises of swelling of the right face.  Additionally, 3 weeks after this injury, he began to note intermittent dizziness spells on a daily basis.  An audiogram on admission noted normal hearing except for a high frequency loss.  It was felt that his vertigo was related to a "concussion" type syndrome and was treated with medications.  His diagnosis was "Vertigo, due to blast." 

	c.  Several Standard Forms 600, dated on various dates in 1966, show he began experiencing dizziness on 11 March 1966.  He was initially admitted and treated at the 95th Evacuation Hospital.  He was later evacuated to the 106th General Hospital for further evaluation at the Ear, Nose, and Throat (ENT) Clinic due to frequent headaches and dizziness.  

	d.  Standard Form 513, dated 5 May 1977,shows he was seen on 5 May 1977 at the ENT Clinic, Moncrief Army Hospital, Fort Jackson, SC, for a hearing evaluation.  He was issued a profile related for his hearing and recommended for no duty requiring excellent hearing. 

	e.  Multiple other medical documents and audiograms as well as chronological records of medical care, mainly at Fort Benning, GA., in the late 1970s and early 1980s, show he received treatment which related to hearing loss and headaches. 

8.  He also provides a newspaper article that shows a photograph of a Soldier and states this Soldier (apparently the applicant) was wounded in the RVN in January and later returned to duty with the 1st Cavalry Division.  The Soldier had been convalescing in a U.S. Army Hospital in Japan after having been struck in the head by a shell fragment which caused him to become temporarily blinded. 

9.  Army Regulation 600-8-22 (Military Awards) provides that the PH 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.  Individuals wounded or killed as a result of "friendly fire" in the "heat of battle" are also awarded the PH as long as the "friendly" projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.  

	b.  Examples of enemy-related injuries which clearly justify award of the PH 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.

DISCUSSION AND CONCLUSIONS:

1.  The criteria for the PH 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 record is void of any evidence that shows he was wounded or injured as a result of hostile action.  His name is not listed on the Vietnam casualty listing.  His available service medical records do not reflect a combat injury or treatment.

3.  He provides multiple medical documents that reveal he was injured in the RVN on 17 February 1966 due to a blast - an exploding shell.  He was hospitalized, treated, and was diagnosed with vertigo and hearing loss caused by this blast.  However, none of the documents he provides show the blast was caused by hostile action or occurred as a result of friendly fire in the heat of battle.  

4.  The applicant's service in Vietnam is not in question.  However, the documents he provides do not satisfy the requirements of the PH.  Until the three requirements are met with the appropriate documentary evidence, the applicant has not met the burden of proof.  Therefore, regrettably, 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 an insufficient evidentiary basis for awarding him the PH in this case.

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)                                         AR20130005166





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ABCMR Record of Proceedings (cont)                                         AR20130005166



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