IN THE CASE OF: 

		BOARD DATE:	    5 August 2014

		DOCKET NUMBER:  AR20130022311 


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, in effect, award of the Purple Heart for a concussion.

2.  The applicant states in 1970 the Army did not believe in the type of head injury he currently has with his hearing loss and other problems from a concussion he received when a tank blew up in Vietnam.  A head injury was hard to prove in 1970.

3.  The applicant provides copies of the following:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DD Form 149 (Application for Correction of Military Record)
* two letters from the Army Review Boards Agency (ARBA)
* Department of Veterans Affairs (VA) Radiology Reports and Progress Notes

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant's complete military records are not available to the Board for review.  However, there was sufficient documentation submitted by the applicant for the Board to conduct a fair and impartial review of this case.

3.  He provided copies of the following:

   a.  A DD Form 214 which shows he was inducted into the Army of the United States on 29 July 1969.  He served as an infantry indirect fire crewman.  He was released from active duty on 28 July 1971 and was transferred to the U.S. Army Reserve Control Group (Annual Training).  His DD Form 214 lists in:

* Item 13 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) the:

* National Defense Service Medal
* Vietnam Service Medal with two bronze service stars
* Republic of Vietnam Campaign Medal
* Combat Infantryman Badge
* Purple Heart
* Army Commendation Medal with 1st Oak Leaf Cluster
* Bronze Star Medal with "V" Device
* Air Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar

* Item 30 (Remarks) – Inclusive dates of service in Vietnam during current period of service:  5 January through 28 November 1970.  

   b.  A VA Radiology Reports, dated 22 January 1996, which shows he underwent a lumbosacral spine x-ray which revealed a small metallic density compatible with reported shrapnel was noted in the projection of the anterior soft tissues near the right mid-lung medially.

   c.  A VA Progress Notes, dated 28 October 2007, which shows he underwent a Compensation and Pension examination for the purpose of hearing loss and Tinnitus.  The form noted that he stated he had sustained a head injury while in Vietnam while underneath a cannon when it exploded.  He was rendered unconscious and experienced dizziness and decreased hearing.
   d.  A DD Form 149, dated 29 January 2011, wherein he requested the Purple Heart.  He stated that medical evidence came to light from the VA.  That wound was not in his military records, but he should be awarded a Purple Heart.

   e.  A letter, dated 22 June 2011, wherein the ARBA advised him that his correspondence would be forwarded to the ABCMR for processing.  The Board would determine the merits of his request and he would be notified of the outcome.

   f.  A letter, dated 18 August 2011, wherein the ARBA advised him that a review of his application did not provide sufficient information in support of his request.  They were unsuccessful in obtaining his military records from the National Archives and Records Administration or Interactive Personnel Electronic Records Management System.  In view of the forgoing, his application was being returned without action and without prejudice.

4.  There are no available orders authorizing or awarding him a first or second award of the Purple Heart during his period of service in Vietnam

5.  His complete medical records are not available for review with this case.

6.  The Vietnam casualty roster shows he was wounded on 29 March 1970.  This roster shows his casualty status code as "24."  This code indicated the status was "hostile wounded in action, not serious, not hospitalized."

7.  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 Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any orders for a first or second award of the Purple Heart pertaining to the applicant.

8.  Army Regulation 600-8-22 (Military Award) states:

   a.  The Purple Heart is awarded for a wound sustained as a result of enemy 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.

   b.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.  

   c.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:

		(1)  Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action.

		(2)  Injury caused by enemy placed mine or trap.

		(3)  Injury caused by enemy released chemical, biological, or nuclear agent.

		(4)  Injury caused by vehicle or aircraft accident resulting from enemy fire.

		(5)  Concussion injuries caused as a result of enemy generated explosions.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence of records shows the applicant was wounded in Vietnam on 29 March 1970 and awarded the Purple Heart.  This award is listed in his DD Form 214.  

2.  There is no available evidence of record and he did not provide sufficient evidence to show he was wounded or sustained injuries during Vietnam as a result of enemy action which clearly justified a second award of the Purple Heart. His name is listed in the Vietnam casualty list once.

3.  By regulation, to be awarded the Purple Heart it is necessary to established that a Soldier was wounded or injured in action.  There must be evidence confirming the wound for which the award is being made was received as a direct result of, or was caused by enemy action, that the wound was treated by medical personnel, and a record of this treatment must have been made a matter of official record.

4.  Absent corroborating evidence confirming his contention, the regulatory burden of proof necessary to support award of a second Purple Heart has not been satisfied in this case.  Therefore, there is no basis for granting the requesting relief.

5.  The Army did and continues to recognize award of a Purple Heart for concussion injuries caused as a result of enemy generated explosions.  Therefore, there is insufficient evidence to support his request.

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)                                         AR20130022311





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ABCMR Record of Proceedings (cont)                                         AR20130022311



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