IN THE CASE OF:	

		BOARD DATE:	    22 May 2014

		DOCKET NUMBER:  AR20130015265 


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 told he should be awarded the Purple Heart when he received treatment in 2008 for traumatic brain damage.

3.  The applicant provides two letters from the Department of Veterans Affairs (VA) and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 16 October 1968.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  His records show he served in the Republic of Vietnam during the period 14 April 1969 through 1 March 1970.

3.  His record contains a memorandum issued by Headquarters, 1st Infantry Division, dated 7 February 1970, subject:  Medical Evacuees, which shows he was a medical evacuee who was reassigned to the 249th General Hospital Medical Holding Company on 4 February 1970.  This document contains no information pertaining to the applicant's medical condition or the circumstances leading to his medical evacuation.

4.  The applicant's records contain a Standard Form 88 (Report of Medical Examination) completed on 21 August 1970, that shows he received a separation physical and was found to be fully qualified for separation.  The form contains no evidence of an injury or wound.

5.  On 11 September 1970, he was honorably released from active duty.  His DD Form 214 does not show award of the Purple Heart.

6.  The applicant's military records contain insufficient evidence to show he was wounded in action or treated for a wound received as a result of enemy action.  His military records do not contain orders awarding him the Purple Heart.

7.  His DA Form 20 (Enlisted Qualification Record) shows in:

* item 38 (Record of Assignments) – he was a patient from 4 to 23 February 1970
* item 40 (Wounds) – no entry
* item 41 (Awards and Decorations) – no Purple Heart

8.  A review of The Adjutant General's Office Casualty Division's Vietnam Casualty Listing does not show the applicant's name as a casualty.

9.  A 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 U.S. Army Human Resources Command Military Awards Branch, failed to reveal any orders for the Purple Heart pertaining to the applicant.

10.  The applicant provided correspondence from medical professionals from the VA.

	a.  On 5 January 2010, a medical doctor with the VA diagnosed the applicant with post-traumatic stress disorder (PTSD) and a mood disorder secondary to brain injury, cyclic in nature.  He stated the applicant requested his opinion regarding his mental illness and how it related to his military service since he was currently rated as 70-percent service-connected disabled for "brain syndrome" and PTSD.  The applicant related that he was medically evacuated from Vietnam during a firefight after becoming deathly physically ill.  He subsequently suffered seizures and obvious signs of brain pathology.  Based on the applicant's description, the doctor opined that the applicant most likely suffered some sort of encephalopathy, such as viral meningitis or exposure to a brain toxin.

	b.  On 31 January 2013, a staff psychiatrist at the VA stated he had treated the applicant since July 2012.  Based on his assessment and the applicant's medical records, he opined that the applicant has PTSD as well as an episodic mood disorder as a result of encephalopathy incurred during his service in Vietnam.

11.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded to members who are wounded in action and states 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 medical personnel, and a record of the medical treatment was made a matter of official record.

12.  Military Personnel Message Number 11-125 issued by the U.S. Army Human Resources Command, dated 29 April 2011, stated the Secretary of the Army approved Army Directive 2011-07 (Awarding the Purple Heart).  The directive provided 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 was carefully considered; however, there is 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.  The Army clarifying guidance (the standards did not change) for 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) is retroactive to 11 September 2001.  As such, this guidance does not apply to the applicant.

4.  The applicant's service in the Republic of Vietnam and his sincerity are not in question.  However, his records contain insufficient medical treatment records or other documents which confirm he was wounded as a result of enemy action or treated for a combat-related wound or injury while serving in the Republic of Vietnam.  The regulatory burden of proof necessary to support award of the Purple Heart has not been met; therefore, it would not be appropriate to award the applicant 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 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)                                         AR20130015265



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ABCMR Record of Proceedings (cont)                                         AR20130015265



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