IN THE CASE OF:	  

		BOARD DATE:	 23 October 2014 

		DOCKET NUMBER:  AR20140003364 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the Purple Heart (PH), Air Medal (AM), and Army Commendation Medal (ARCOM).  

2.  He states:

   a.  He believes the record is unjust because events that occurred during his Army service render him eligible for the PH, AM, and ARCOM; however, his 
DD Form 214 and Official Military Personnel File (OMPF) do not reflect authorization for the awards.  The record demonstrates that he was injured in Vietnam, and the injuries were sustained in combat against an enemy of the United States.  He still suffers from the injuries and he would like to receive recognition for his injuries.  

	b.  He was assigned to the 13th Combat Aviation Battalion in Vietnam.  In May 1967, he was ordered to temporary duty with the Military Assistance Command, Vietnam (MACV), and assigned to Advisory Team 75, which operated out of My Tho.  He describes his duties with the advisory team, including routinely accompanying Republic of Vietnam (RVN) Soldiers on resupply missions.  He describes the documentation he submitted that he presumed would have been used to determine his eligibility for the AM. 



	c.  An Army of the RVN (ARVN) captain sought to recognize the service he provided to the captain's unit.  The ARVN captain drafted a letter recommending him for a commendation.  He submitted the letter to a U.S. Army commissioned officer who assured him he would be recommended for the ARCOM.  

	d.  On or about 17 December 1967, he was injured as a result of enemy action.  

		(1)  Numerous mortar rounds dropped within the unit's perimeter–more than the usual harassing fire they received–and he felt a coordinated ground attack might follow.  He left the building in which he had sought cover to deliver additional ammunition to a fortified defensive position in the event of an attack.  As he hurried to his battle position, a second barrage of mortars impacted the base.  He tried to run back to the main base building for cover, and as he neared the building two mortar rounds impacted dangerously close to his position.  He felt the concussion of the explosion lift him from the ground.  He sustained injuries to his left hand, left arm, head, and left eye from secondary shrapnel.  

		(2)  He was not immediately hospitalized for his injuries.  He received field dressings, including a gauze eye patch that he wore for 2 days.  He has enclosed photographs that show him with the field dressing on his left arm and swelling above his left eye.  The eye eventually became infected and having spent 
10 months with Advisory Team 75 he was sent back to the 13th Combat Aviation Battalion.  As he awaited orders to return to the United States, his infection became worse, but surgical correction was deferred until he returned to the United States.  His recovery was complicated when he contracted hepatitis.  

	e.  As he was preparing to be released from active duty, he asked his first sergeant about his PH, ARCOM, and AM.  The first sergeant referred him to an administrative office, and an officer explained that his unit in Vietnam was waiting to receive his records and orders for awards from Advisory Team 75.  The officer assured him that once these records reached his permanent duty station, his record would be amended to reflect the additional awards.  Since his release from active duty, he has been unable to successfully address these discrepancies in his record.  

3.  He provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* unsigned statement from Mr. D_____ D____, dated 9 July 2013
* untranslated document written in Vietnamese
* letterhead from Headquarters, 7th Infantry Division Advisory Detachment, MACV
* envelope, postmarked 22 August 1967
* service and civilian medical records
* letters from his doctor to the Department of Veterans Affairs (VA) and Disabled American Veterans
* letter to his doctor from a doctor at Bucks County Plastic Surgery Center
* letters from friends and family describing his medical symptoms
* self-authored letter to the VA
* VA Rating Decision
* orders
* letters to and from Members of Congress
* letters to him from the National Personnel Records Center
* photographs

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.  Paragraph 2-5, Section II, Army Regulation 15-185, the regulation under which this Board operates, states the Board will not consider any application if it determines the applicant has not exhausted all available administrative remedies.  

	a.  On 18 February 2014, the Acting Chief, Congressional and Special Actions, Army Review Boards Agency, informed a Member of Congress that the applicant could pursue award of the ARCOM and AM under the provisions of Title 10, U.S. Code, Section 1130.  The Member of Congress was advised that the request with supporting documentation should be addressed to the Awards and Decorations Branch, U.S. Army Human Resources Command (HRC).  


	b.  The Awards and Decorations Branch has confirmed that they have received a request pertaining to the ARCOM and AM.  These awards will not be addressed further in these Proceedings.  

3.  On 2 May 1966, the applicant enlisted in the Regular Army (RA).  

4.  A DA Form 1 (Morning Report), dated 24 February 1967, shows he was released from assignment to The Student Brigade, U.S. Army Infantry School, Fort Benning, GA, and reassigned to the 1st Aviation Brigade in Vietnam.  

5.  His OMPF contains very little documentation pertaining to his RA service; however, it does contain a DD Form 214 showing:

* on 1 May 1969, he was honorably released from active duty at Fort Hamilton, NY, after completing 3 years of total active service
* he served in Vietnam for 1 year
* he was awarded the Vietnam Service Medal with one bronze service star and the RVN Campaign Medal with Device (1960)

6.  The PH is not listed on his DD Form 214, and his OMPF is void of documentation showing he was wounded in action or that orders were issued awarding him the PH.  

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

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 Awards and Decorations Branch of the U.S. Army HRC, failed to reveal any orders for the PH pertaining to the applicant.

9.  He provides several documents in support of his request, including the following:

	a.  An unsigned letter, dated 9 July 2013, shows Mr. D_____ D____ states he was attached to Advisory Team 75 in My Tho, Vietnam.  He describes an attack on or about 17 December 1967 during which he found the applicant laying face down a few feet away from a mortar blast.  He dragged the applicant to the aid station.  He does not describe any injuries the applicant may have received.  




	b.  Partially legible service medical records show:

* on 5 February 1968, he was seen by the 13th Aviation Battalion Medical Section in Vietnam for an infection (Other than the entry "(L)" (left), the specific area of the infection is illegible.)
* on 13 February 1968, he was seen by the same Medical Section for symptoms of possible neuroma (commonly known as a pinched nerve) in his right arm secondary to an injury he had received 3 years earlier
* in March 1968, he was seen at Walson Army Hospital, Fort Dix, NJ, for treatment of a lesion in the supra-orbital region around his left eye
* no entries indicating he was injured as a result of hostile action

	c.  On or about 24 August 2001, the Chief, Military Awards Branch (now Awards and Decorations Branch), U.S. Total Army Personnel Command (now HRC), informed a Member of Congress that there was insufficient documentation available to substantiate an award of the PH for the applicant.

	d.  A letter from his doctor to the VA, received by the VA on 16 August 2006, shows that, over the years the applicant had been a patient, he had complained of "swelling of the eye and ringing in his [ears]."

	e.  A letter to his doctor from a doctor at Bucks County Plastic Surgery Center, dated 6 October 2006, shows the applicant had a history of having had a shrapnel injury in 1968 that required three surgeries and he indicated concern that there was a foreign body retained in the eye.  The letter does not indicate the source of the medical history.

	f.  A civilian medical record, dated 18 October 2006, shows diagnostic imaging found no foreign body, but did find some scarring associated with the subcutaneous tissue of the left supra-orbital scalp.

	g.  A letter from his doctor to Disabled American Veterans, dated 17 February 2009, shows his doctor stated the applicant has:

* permanent tinnitus and bilateral hearing loss as a direct result of noise damage sustained from rocket and mortar fire
* a permanent ruptured tympanic membrane as a direct result of military service
* an intermittent, irreversible cognitive deficit caused by head trauma sustained in battle

	h.  A self-authored letter to the VA, dated 18 February 2012, shows he stated he sustained a head injury as a result of a mortar blast in December 1967.  

	i.  Letters from friends and family describe him as having chronic swelling and irritation in his left eye and forehead area with associated pain.  In letters, dated 19 February 2012, his wife and son indicate he was injured in a mortar attack during his service in Vietnam.

	j.  A VA Rating Decision, dated 20 November 2013, shows he received service-connected disability ratings for facial nerve palsy (previously evaluated as residuals of left eye socket injury) and status post head injury.  He had previously received ratings for tinnitus and residuals of a head injury.  The Rating Decision does not cite the cause of the disabling conditions.  

10.  He provides numerous photographs, all of which appear to have been taken in Vietnam.  Two of the photographs show him with a bandage on his left elbow.  

11.  Army Regulation 600-8-22 (Military Awards) states the PH 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 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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for correction of his DD Form 214 to show the PH.  

2.  Unfortunately, there are very few records available that document his service in Vietnam, and no official records indicate that he was injured as a result of hostile action in December 1967.  

3.  His own statement and other statements made many years later are an insufficient basis for correcting the record to show he received the PH.  Award of the PH requires substantiating evidence verifying that a wound was the result of hostile action, that it required treatment by medical personnel, and that the medical treatment was made a matter of official record.  In the absence of such evidence, there is an insufficient basis upon which to award him the PH and add the award to his DD Form 214.  




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)                                         AR20140003364



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ABCMR Record of Proceedings (cont)                                         AR20140003364



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