BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20140001470 


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 correction of his records to show the following:

* award of the Purple Heart for injuries he received in Vietnam
* entitlement to Combat Related Special Compensation (CRSC)

2.  The applicant states, in effect:

   a.  He was never awarded a Purple Heart after being injured in Vietnam.  His tank hit a land mine on 25 November 1969 and he sustained injuries to both ears and a traumatic brain injury (TBI) during Operation Texas Traveler with Company M, 3rd Squadron, 11th Armored Cavalry Regiment (ACR).  No medical paperwork was ever submitted by his superiors/active duty officers.  A Department of Veterans Affairs (VA) letter of determination, dated 25 August 2008, shows combat action was acknowledged.

   b.  He has enclosed a copy of the last denial of his claim for CRSC.  He does not understand why he is being denied CRSC since his military and medical records should be self-explanatory as to the reason and logic for his claim.  He was not forthcoming as to what he wanted to have changed in his military records because they should stand on their own.

   c.  His military records show he was in Vietnam for a total of 6 months out of a 12-month tour.  He was medically evacuated to the 24th Evacuation Hospital in Long Binh and then to Camp Zama, Japan where he spent nearly 3 months for his "head injuries" to include hearing loss.  While the history of his tank explosion is sparse (what he has been able to find is included), the fact that he was unable to complete his 12-month tour in Vietnam and the fact that he spent months in various medical facilities should be enough evidence to substantiate his claim.  He does not know what else he can submit.

   d.  When he was in Japan he was medically evaluated and it was determined that he could not be reassigned to Vietnam because of his ear injuries.  He needed to be assigned to a "dry climate" so his ears could heal.  All of this information should be in his personnel records, which he does not have access to, but the Board should have access.  If these records are not enough to warrant his CRSC claim, what else does the Board need?

3.  The applicant provides copies of the following:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Chronological Statement of Retirement Points
* email correspondence pertaining to the 3rd Squadron, 11th Armored Cavalry
* three letters from the VA
* DD Form 2860 (Application for CRSC), pages 2, 3, and 5
* letter from the U.S. Army Human Resources Command (HRC)

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 enlisted in the Regular Army on 19 August 1968 for 3 years.  He served in military occupational specialty 11E (armor crewman).  He served in Vietnam from 20 July through 20 December 1969, during two campaigns.  

3.  His records contain Special Orders Number 207, dated 26 July 1971, that shows he was released from active duty not by reason of physical disability and transferred to the U.S. Army Reserve, effective 27 July 1971. 

4.  His DD Form 214 lists the following awards:

* National Defense Service Medal
* Vietnam Service Medal with two bronze service stars
* Vietnam Campaign Medal
* overseas service bar
* Marksman Marksmanship Qualification Badge with Rifle Bar

5.  There are no available orders authorizing or awarding him a Purple Heart during his period of service in Vietnam.

6.  His complete medical records for his period of active service are not available for review with this case.

7.  His name is not listed on the Vietnam casualty roster.

8.  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 award of the Purple Heart pertaining to the applicant.

9.  He enlisted in the Florida Army National Guard (FLARNG) on 2 February 1972.  

10.  His records also contain Standard Forms (SF) 88 (Report of Medical Examination) and SF 93 (Report of Medical History) which show he underwent a periodic physical examination on 19 October 1977 and he was found qualified for retention.  He indicated on the SF 93 that he was in good health; he underwent an ear operation in Japan and he was hospitalized.  He states he was also hospitalized in Miami due to malaria.  No dates are listed for the injury/illness.

11.  On 31 March 1992, he was released from the FLARNG and transferred to the Retired Reserve.  He was honorably retired on 9 March 2010.

12.  He provided copies of the following:

   a.  Page 3 of a letter, reportedly dated 25 August 2008, wherein he was advised of the following:
		(1)  His service treatment and personnel records were reviewed and were silent for any complaints, treatments, or diagnoses of mental health problems during his service.  Those records did verify that he was assigned to Company M, 3rd Squadron, 11th ACR, from 21 July 1969 through 26 March 1970.  His DD Form 214 verified that he was in Vietnam from 20 July through 20 December 1969.  

		(2)  A book titled, "Vietnam Order of Battle" verified the 3d Squadron, 11th ACR was stationed in Bien Hoa, from October 1969 through June 1970.  Information from Air Base Defense in the Republic of Vietnam, 1961-1973, verified that Bien Hoa received incoming enemy attacks on 25 November 1969 and 12 December 1969.  They also verified that the base he was stationed at received incoming enemy attacks and verified a military stressor.

		(3)  A VA examination, dated 2 August 2008, showing the examiner indicated the applicant did not met the criteria for a diagnosis of post-traumatic stress disorder (PTSD), instead the examiner provided a diagnosis of anxiety disorder, not otherwise specified, and noted it was likely related to his military combat experiences.

   b.  Email correspondence, dated 30 September 2010, wherein he was advised about details of events related to the 3rd Squadron, 11th ACR, on 25 November 1969.

   c.  A letter, dated 12 September 2011, wherein the VA advised him his service-connected rating for bilateral hearing loss was changed to 20 percent (%) and he was denied entitlement to the 100% rate.

   d.  A letter, dated 3 November 2011, wherein the VA advised him that his service-connected rating for generalized anxiety disorder with panic attacks was changed to 70%.

   e.  Pages 2, 3, and 5 of a DA Form 2860, dated 15 November 2013, he submitted for CRSC bilateral hearing loss caused on Operation Texas Traveler in Vietnam in 1969 when an M-35 tank struck a land mine and the tank hull was destroyed.

   f.  A letter, dated 30 December 2013, wherein HRC, CRSC Branch, advised him that after reviewing all of his documentation in support of his claim, they were unable to overturn the previous adjudication(s).  The documentation which he submitted showed no new evidence to link his requested conditions to a combat-related event.  That disapproval was final and he could appeal to the ABCMR.
   
13.  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 the 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.

   d.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart include accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action and PTSD.

14.  CRSC, as established by Title 10, USC, section 1413a, as amended, provides for the payment of the amount of money a military retiree would receive from the VA for combat-related disabilities if it weren't for the statutory prohibition for a military retiree to receive a VA disability pension.  Payment is made by the Military Department, not the VA, and is tax free.  Eligible members are those retirees who have 20 years of service for retired pay computation (or 20 years of service creditable for Reserve retirement at age 60) and who have disabilities that are the direct result of armed conflict, especially hazardous military duty, training exercises that simulate war, or cause by an instrumentality of war.  Such disabilities must be compensated by the VA and rated at least 10% disability.  Military retirees who are approved for CRSC must have waiver a portion of their military retired pay since CRSC consists of the Military Department returning a portion of the waived retired pay to the military retiree.

DISCUSSION AND CONCLUSIONS:

1.  With respect to award of the Purple Heart:

   a.  There is no evidence of record and he provided none to show he sustained injuries as a result of enemy action during his period of service in Vietnam which clearly justified award of the Purple Heart for a head injury which resulted in his hearing loss.  Additionally, his complete Army medical records, which are necessary to confirm that treatment was required, are not available for review.

   b.  By regulation, to be awarded the Purple Heart it is necessary to establish 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.

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

2.  With respect to his request for entitlement to CRSC:

   a.  His contentions and the documentation he submitted were carefully considered.  However, there is no evidence of record and he did not provide sufficient evidence to show he met all of the requirements for CRSC for bilateral hearing loss. 

   b.  CRCS determinations require evidence of a direct causal relationship to the military retiree's VA-rated disabilities to war or the simulation of war.  Without evidence to establish a direct, casual relationship of his bilateral hearing loss to the incident he describes, but unfortunately is not corroborated, is insufficient evidence to support entitlement to CRSC benefits.




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)                                         AR20140001470



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ABCMR Record of Proceedings (cont)                                         AR20140001470



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