IN THE CASE OF:	

		BOARD DATE:	    8 May 2014

		DOCKET NUMBER:  AR20130016132 


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 should be awarded the PH for the disability he incurred while in the service that has now made him 100 percent disabled.  He states the PH was not awarded at the time of his injury because his unit was hot in combat, which precluded time for it to be awarded or requested.

3.  The applicant further states the injury he sustained now causes him extensive breathing problems and hinders his daily functions. 

4.  The applicant provides:

* Department of Veterans Affairs Rating Decision dated 17 October 2007
* DD Form 214 (Report of Separation from the Armed Forces of the United States) ending 10 December 1952
* DD Form 214 (Armed Forces of the United States, Report of Transfer or Discharge) ending 30 April 1971
* Statement from a physician, dated 9 August 2013

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 U.S. retired lieutenant colonel (LTC/O-5) who served on active duty in the Regular Army as an enlisted Soldier during the period 6 March 1951 through 10 December 1952 and served on active duty while in the United States Army Reserve (USAR) as a commissioned officer during the period 6 March 1951 through 30 April 1971.  The applicant served in a variety of stateside and overseas assignments that includes the United States Army Europe, Ethiopia, and the Republic of Vietnam (RVN).

3.  On 30 April 1971, he was honorably retired from active duty in the rank/grade of LTC/O-5 after completing 20 years, 1 month, and 25 days of service.  

4.  Item 24 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 ending 30 April 1971 does not show award of the PH.

5.  Item 17 (Foreign Service) of the applicant’s DA Form 66 (Officer Qualification Record) shows he served in the RVN during the period of 18 June 1967 to 12 June 1968.

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.

7.  The applicant’s name is not shown on the Army Vietnam Casualty Roster and his Army Military Human Resource Record, formerly known as the official military personnel file, does 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. 

8.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), 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 PH pertaining to the applicant. 
9.  The applicant provides a copy of a Department of Veterans Affairs Rating Decision which shows he was granted a 100 disability percent rating for metatastic hormone sensitive prostate cancer with bone metatastases.  This decision also stated his medical condition was service connected.

10.  The applicant also provides a statement from his personal physician indicating he has been following him for metastatic prostate cancer.   The physician states the applicant has had an elevated hemidiaphragm (half of the diaphragm, the muscle that separates the chest cavity from the abdomen and that serves as the main muscle of respiration) which is consistent with prior trauma sustained during the war.

11.  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 and his available service medical records do not reflect a combat injury or treatment.

3.   The applicant provides documentation from the Department of Veterans Affairs and from his physician which indicate his metatastic hormone sensitive prostate cancer was service connected.  However, none of these documents show his medical condition 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.

5.  This action in no way diminished the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  

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)                                         AR20130016132



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ABCMR Record of Proceedings (cont)                                         AR20130016132



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