IN THE CASE OF:    

		BOARD DATE:  14 October 2014	  

		DOCKET NUMBER:  AR20140003440 


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 and correction of his 
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the award.

2.  The applicant states he was wounded in the right leg/knee by shrapnel in an explosion during firefights in Vietnam in October/November 1969 while serving with Delta 1/11 near the demilitarized zone in the Republic of Vietnam (RVN).  He was medically evacuated to a field hospital, then to a rear area hospital near Saigon, and then to Camp Zama, Japan where he was a patient for 4 or 5 weeks.  He returned to the United States and was assigned to Headquarters and Headquarters Troop, 3rd Squadron, 1st Cavalry, 1st Armored Division, Fort Hood, TX.

3.  The applicant provides copies of his DD Form 214, two Allegiance Health letters, and two Department of Veterans Affairs (VA) disability rating letters.

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 U.S. Army on 5 March 1969.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  His DA Form 20 (Enlisted Qualification Record) shows in –

* item 31 (Foreign Service), he served in Vietnam from 4 August 1969 through 7 December 1969
* item 38 (Record of Assignments) –

* Company D, 1st Battalion, 11th Infantry, 1st Brigade, 5th Infantry Division (Mechanized), from 16 August 1969 through 26 October 1969
* Medical Hold Company, U.S. Army Hospital, Camp Zama, Japan on 27 October 1969

* item 40 (Wounds) is blank (no entries)
* item 41 (Awards and Decorations) does not list the Purple Heart

4.  The applicant's DD Form 214 shows he was honorably released from active duty on 4 March 1971.  He had completed 2 years of active service this period that included 4 months and 4 days of foreign service. It does not list the Purple Heart.

5.  A review of the applicant's military personnel record failed to reveal any orders or other evidence that shows he was awarded the Purple Heart.

6.  This review did reveal a:

   a.  USAAC Form 213 (Search Request), dated 26 April 1971, that shows a search for clinical records was requested for the 95th Evacuation Hospital (for October and December 1969) and the U.S. Army Hospital, Camp Zama, Japan (23 October to 5 December 1969), and
   
   b.  VA Form 07-3101 (Request for Information), dated 26 April 1971, that shows, in pertinent part, in –

* item 17 (Alleged Disease or Injury):  "Fungus, knee injury
* item 18 (Dates of Treatment):  October 13 – October 23, 1969
* item 19 (Places of Treatment):  95th Evacuation Hospital, RVN
* Endorsement – Verification by Service Department:  "No additional medical records found"

7.  A review of The Adjutant General's Office, Casualty Division's Vietnam casualty roster failed to reveal the applicant's name.

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 Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant.

9.  In support of his application the applicant provides the following documents:

   a.  two Allegiance Health, Imaging Services Department, MRI reports, dated
3 May 2013 and 7 June 2013, that show the results of the applicant's MRI examinations and, in pertinent part, that –

* his MRI of the right knee - he previously had right knee arthroscopic surgery in the 1970s that involved an explosion right knee injury (sustained in 1969)
* his MRI of the brain for Sensorineural Hearing Loss showed no evidence of acoustic neuroma, cerebellopontine angle mass, abnormal enhancement or acute infarct

   b.  two VA, Detroit VA Regional Office, rating decisions, dated 22 and 
23 January 2014, that show the applicant was granted service connection for –

* Bilateral Hearing Loss – 10%
* Tinnitus – 10%
* Scar (Right Knee) – 10%
* Right Knee Osteoarthritis – 10%

10.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.  The Purple Heart is awarded to any member who was wounded or killed in action or as a result of enemy action.  A wound is defined as an injury to any part of the body from an outside force, element, or agent sustained in action in the face of the armed enemy or as a result of a hostile act of such enemy.  In order to support awarding a member the Purple Heart, it is necessary to establish the wound for which the award is being made required treatment by medical personnel and the medical treatment for the wound or injury received in action must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim to the Purple Heart was carefully considered.

   a.  The applicant provides no military medical records that show he was injured as a result of enemy action.

   b.  His available military service records do not show any evidence that he was wounded or injured in action as a result of a hostile act of the enemy.

   c.  The applicant's name is not listed on the Vietnam casualty roster.

   d.  Thus, the evidence of record does not support the applicant's claim.

2.  Therefore, in view of the foregoing, there is an insufficient evidentiary basis to grant the applicant's 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 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)                                         AR20140003440



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ABCMR Record of Proceedings (cont)                                         AR20140003440



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