IN THE CASE OF:
BOARD DATE: 6 January 2015
DOCKET NUMBER: AR20140007295
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.
2. The applicant states:
* he sustained a perforated eardrum due to a booby-trap explosion in January or February 1971
* he was treated by an audiologist at Camp Gorvad, Republic of Vietnam
* the Department of Veterans Affairs recognized his injury and awarded him zero-percent disability
* the U.S. Army Human Resources Command (HRC) refuses to award the Purple Heart due to their failure to locate his medical records from August 1969 through March 1972
* affidavits were submitted by three noncommissioned officers confirming his injury, but HRC refuses to accept this documentation
3. The applicant provides:
* self-authored statement
* letter from the Army Review Boards Agency, dated 3 January 2013
* three letters from HRC
* medical records extracts
* audiogram, dated 5 January 1973
* three statements from former Soldiers
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 December 1992
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 enlisted in the Regular Army on 18 August 1969.
3. His DA Form 2-1 (Personnel Qualification Record Part II) shows he was credited with service in Vietnam from 14 May 1970 through 13 December 1971. This form does not show award of the Purple Heart.
4. On 20 February 1972, he was honorably released from active duty and transferred to the U.S. Army Reserve. His DD Form 214 for this period does not show award of the Purple Heart.
5. The applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant on 8 March 1975. He served on active duty from
15 September 1975 until he was discharged on 2 November 1981.
6. He entered active duty in the Regular Army on 27 August 1982. On 31 December 1992, he retired in the rank of major. His DD Form 214 for the period ending 31 December 1992 does not show award of the Purple Heart.
7. On 15 March 2013, HRC denied the applicant's request for award of the Purple Heart.
8. The applicant provided a self-authored statement explaining his attempts for award of the Purple Heart. He also provided extracts of medical records showing:
* he suffers from right ear hearing loss
* no medical record documentation or hospitalization at the time of the injury linking hearing loss to injury
* a zero -percent combat-related disability rating for hearing loss
9. The applicant also provided three statements from former Soldiers who attest to being stationed with him from 1970 to 1971 and state he sustained an ear injury as a direct result of hostile action on or about January 1971 while on combat patrol in or near the vicinity of Bình D??ng Province, Republic of Vietnam. They further state the applicant's injury resulted in a temporary hearing loss in one ear and he required medical treatment at an aid station and the 11th Aviation Brigade dispensary.
10. His name is not shown on the Vietnam casualty listing of Vietnam era casualties used to verify entitlement to the Purple Heart.
11. His records are void of and he failed to provide medical evidence showing he was injured as a result of hostile action.
12. Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained 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 military 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 award of the Purple Heart.
2. Unfortunately, no medical records indicate he was injured as a result of hostile action in January or February 1971.
3. His personal statement and statements from former Soldiers, as well as medical documentation attributing his hearing loss to exposure to hazardous noise during his active duty service, are an insufficient basis for awarding him the Purple Heart. Award of the Purple Heart requires substantiating evidence verifying the 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.
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) AR20140007295
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20140007295
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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