IN THE CASE OF:	   

		BOARD DATE:	  19 June 2014

		DOCKET NUMBER:  AR20130018082 


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 for sustaining a Traumatic Brain Injury (TBI).

2.  The applicant states that he suffers from Post-Traumatic Stress Disorder (PTSD) and he has been receiving treatment for this disorder for the last 6 or 7 years.  His doctor referred him to a specialist for testing to determine if he had sustained a TBI.  He was tested and it was determined that he does suffer from a TBI.

3.  The applicant provides a neuropsychological report.

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 11 July 1968.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.  He served in the Republic of Vietnam from 10 December 1968 through 5 November 1969.  On 10 July 1970, he was honorably released from active duty after completing 2 years of total active service and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

	a.  Item 40 (Wounds) no entry (blank).

	b.  Item 41 (Awards and Decorations) no entry awarding him the Purple Heart.

4.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) does not show award of the Purple Heart.

5.  There is no evidence in the available record showing he sustained any injuries as a result of hostile action or that he was treated for wounds sustained as a result of hostile action.

6.  A review of The Adjutant General's Office, Casualty Division's Vietnam casualty listing does not show the applicant's name is listed as a casualty.

7.  The applicant's record contains a DA Form 2166-6 (Enlisted Evaluation Report (EER)) rendered while he was serving in the USAR for the period October 1987 through November 1988.  Part IIIc(1) (Rater's Evaluation) of this form shows his rater stated "[Applicant's name] due to illness has been unable to perform all duties expected of his position.  During several IDT [inactive duty training] and Annual Training periods, he did not attend due injuries from an automobile accident."  The applicant authenticated this document in the appropriate block indicating he had reviewed the EER.

8.  The applicant provides a neuropsychological report rendered by a Polytrauma Neuropsychologist at the Department of Behavioral Health, Philadelphia Veterans Affairs (VA) Medical Center, Philadelphia, PA, on 26 February 2013.  This report shows, in part, that a comprehensive neuropsychological evaluation had been conducted at the request of the applicant's attending physician in order to assess his current levels of cognitive functioning, including impairments, weaknesses, and current intact abilities.  The results of the testing indicated a Moderate TBI.  The catalyst for the request for testing was the applicant's testimony that:

"He was deployed to Vietnam from November, 1968 through 1969.  While in Vietnam he was exposed to multiple explosions, spending most of his time in the field.  He flew helicopters, states he was exposed to 500-pound bombs dropped in his vicinity, other explosions, and mortar fire.  He thinks he lost consciousness after at least one explosion, and was told that after one incident of a mortar going off, he was 'blown backwards, off his feet,' and recalled feeling dazed and dizzy.  Following one explosion, he reported blood coming from his right ear."

9.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained while 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 by medical personnel, and the medical treatment must have been made a matter of official record.  This regulation also provides examples of injuries or wounds that clearly do not justify award of the Purple Heart.  This includes accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

10.  Army Directive 2011-07 (Awarding the Purple Heart), issued 29 April 2011, provides, in part, that the authority to award of the Purple Heart for concussions and TBI are only retroactive back to 11 September 2001.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show he was awarded the Purple Heart was carefully considered.

2.  Although evidence of record shows the applicant was involved in an automobile accident in the late 1980s, there is no evidence of record and the applicant has not provided sufficient evidence showing he sustained any injuries or that he was treated for wounds sustained as a result of hostile action while serving in the Republic of Vietnam.

3.  Absent evidence that conclusively shows the applicant sustained wounds or injuries as a result of hostile action, that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is an insufficient basis for awarding him the Purple Heart in this case.

4.  Additionally, the applicant is advised that in accordance with Army Directive 2011-07, the authority to award of the Purple Heart for concussions and TBI are only retroactive back to 11 September 2001.  So, he is not eligible for award of the Purple Heart unless he can provide substantiating evidence which verifies that he sustained some other type of wound which was the result of hostile action and required treatment by medical personnel, and the medical treatment was made a matter of official record.

5.  The applicant and all others should know that this action in no way diminishes 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)                                         AR20130018082



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ABCMR Record of Proceedings (cont)                                         AR20130018082



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