IN THE CASE OF:
BOARD DATE: 24 June 2014
DOCKET NUMBER: AR20130017793
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 wounded while serving as an active duty Soldier in Vietnam in 1969
* he meets the criteria and should have been awarded the Purple Heart
* on 14 December 1969, while en route to communication towers on Phu Tai Mountain, Vietnam, a rocket-type device hit the ground between a 2.5 ton truck and the jeep he was sitting in
* he was thrown from the jeep and he remembers lying in the road in shock and feeling like his back and leg were on fire
* his entire back and right leg were wet with blood and he was bleeding badly from his right thigh
* he was treated on site, loaded onto a gurney, and unable to remember anything until he woke up in a Mobile Army Surgical Hospital (MASH) unit in Qui Nhon
* a doctor told him about his injuries and that he was very lucky
* his first sergeant came to see him and told him he was being sent home
* he received medical care for his injuries at the Oscar G. Johnson Veterans Administration (VA) Hospital in Iron Mountain, MI, as well as the VA hospitals in Minneapolis, Appleton, Milwaukee, and Madison
* he has been awarded the following disability ratings for his injuries and this information should be used to award him the Purple Heart:
* post-traumatic stress disorder 100 percent
* shell fragment wound residuals, right thigh and peroneal nerve involvement and paresthesia of right leg 30 percent
* degenerative joint disease, right hip, secondary to shell fragment wound, right thigh 20 percent
* tinnitus 10 percent
* defective hearing 0 percent
* shell fragment wound scars, back of neck and right shoulder 0 percent
3. The applicant provides:
* self-authored statements
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* VA rating decision
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 Regular Army on 6 January 1969.
3. He served in Vietnam from 8 June 1969 to 11 January 1970. While in Vietnam, he was assigned to:
* 264th Transportation Company from 13 June 1969 to 20 November 1969
* 387th Transportation Company from 21 November 1969 to 11 January 1970
4. On 13 January 1970, the applicant was honorably discharged due to hardship. His DD Form 214 does not show award of 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. There is also nothing in the typical sources below that show he was wounded and/or injured as a result of hostile action:
a. Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) does not show he was ever in a patient status.
b. Item 40 (Wounds) of his DA Form 20 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.
c. 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.
d. 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.
6. The applicant provides self-authored statements about injuries he received while in Vietnam and the disability ratings he received from the VA. He also provides a copy of his VA disability rating decision, dated 16 December 2004, which shows he incurred shell fragment wounds and he was assigned a 100 percent disability rating based on total occupational and social impairment.
7. The applicant's complete medical records are not available for review and he does not provide copies of his medical records. The VA rating decision does not show what military records were used as a basis for the rating decision.
8. Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained 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, and the medical treatment must have been made a matter of official record. 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.
DISCUSSION AND CONCLUSIONS:
1. The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify the injury/wound was sustained in action against an enemy or as a result of hostile action, that the injury/wound required treatment by medical personnel, and that the medical treatment was made a matter of official record.
2. Although he provides a copy his VA rating decision which shows he incurred shell fragment wounds, this documentation is after the fact, he fails to provide medical documentation for treatment received immediately following the incident, and the VA rating decision does not show what military records were used as basis for that decision.
3. Notwithstanding his sincerity, in the absence of documentation that conclusively shows he was wounded or injured as a result of hostile action, treated for those wounds/injuries, and his treatment was made a matter of record, there is insufficient evidence upon which to base award of 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) AR20130017793
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20130017793
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2008 | 20080011917
However, there is no evidence of record which verifies his injuries were a result of hostile action in Vietnam. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding the Purple Heart for wounds sustained in July 1969 and showing this award on his DD Form 214. ______________________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military...
ARMY | BCMR | CY2011 | 20110014610
The applicant states: * he served on active duty in the U.S. Army from 3 April 1969 through 2 April 1971 * on 2 February 1970, he incurred and was later diagnosed with residual shell fragment wound, left leg, left foot, left side, and right thigh * his wounds were the result of a fragmentation hand grenade exploding also injuring another Soldier * he received medical treatment at the local medical hospital and he was presented the Purple Heart by a captain assigned to the...
ARMY | BCMR | CY2014 | 20140017773
Personnel wounded as a result of non-hostile action who are not placed on hospital's very seriously injured lists are not reported as casualties in accordance with current regulations. 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. There is no available evidence and he did not provide sufficient evidence...
ARMY | BCMR | CY2008 | 20080014565
The applicant states that he was wounded in his right thigh by shrapnel during a rocket attack on 27 February 1969 in the Republic of Vietnam; however, his injury was not entered into his medical records. In his statement, dated 17 January 2008, a retired Lieutenant General (LTG) states that he served at Da Nang during the same time frame and that he learned that the applicant was wounded during a rocket attack but was not awarded the Purple Heart. There are no general orders that show he...
ARMY | BCMR | CY2012 | 20120020541
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. His available service medical records show he listed a shrapnel wound in December 1969 and the military medical doctor found evidence of a scar on his right forearm. In the absence of orders or other additional documentation that conclusively shows he was wounded or injured as a result of enemy action and treated for those wounds, there is an...
ARMY | BCMR | CY2009 | 20090003778
The rating decision states the applicant had been treated for a wound he sustained to his left knee in February 1969. The applicant was wounded a second time in the left knee, in February 1969. While the evidence shows he received treatment by medical personnel for a wound that he sustained to his left knee, there is no evidence that shows he was wounded as a result of hostile action.
ARMY | BCMR | CY2009 | 20090004141
The applicant requests reconsideration of his earlier request to correct his military records to show award of the Purple Heart for wounds received in the Republic of Vietnam. The applicant states that he served with Company A, 2nd Battalion, 35th Infantry Regiment in the Republic of Vietnam and he has a scar on his right thigh from a shrapnel wound that he received in the Republic of Vietnam. Based on the absence of substantiating evidence, the Board denied the applicant's request for...
ARMY | BCMR | CY2011 | 20110024144
The applicant provides a statement from his spouse and a VA rating decision as new evidence that will be considered by the Board. d. Reasonable doubt was resolved in favor of the applicant and it was determined he suffered shell fragment wounds to the left leg during combat in World War II that have resulted in the three tender scars of the left lower leg shown by objective findings during his latest VA examination. The available evidence shows the VA granted the applicant service...
ARMY | BCMR | CY2004 | 20040002104C070208
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 FEBRUARY 2005 DOCKET NUMBER: AR20040002104 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. The evidence in this case is far from conclusive. Two medical reports, the earliest in October 1968, indicate that the applicant’s injuries resulted from an auto accident in Vietnam.
ARMY | BCMR | CY2010 | 20100026430
No combat injuries or wounds are recorded on his medical records; however, an entry "scar to left leg" was entered on his Standard Form 88 (Report of Medical Examination). In this case, the applicant's name is not shown on the Vietnam casualty roster, his DA Form 20 is not available for review, his service record is void of any orders that show he was awarded the Purple Heart, his record is void of any official Army telegrams or Western Union telegrams, and there is no conclusive evidence...