BOARD DATE:	  15 May 2015

		DOCKET NUMBER:  AR20140015138 


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 award of the Purple Heart and that his date of birth (DOB) is 1 February XXXX not 31 January XXXX.

2.  The applicant states, in effect:

* he is submitting Department of Veterans Affairs (VA) medical records in support of his request.  His active duty records do not indicate that he was wounded or treated for wounds when he served 
* his VA medical records show he had surgery in 1973
* in Vietnam, he was wounded during numerous enemy attacks on their location, at the time, it was not known that he had shrapnel in his head
* it was only after years of pain and seizures that Duke University Hospital removed three parts of his brain that contained embedded shrapnel 
* aside from his combat experience in Vietnam there is no explanation for the shrapnel
* records concerning his operation are available at Duke University Hospital

3.  The applicant provides copies of – 

* his first and third DD Forms 214 (Report of Transfer or Discharge)
* Registry Department City of Boston abstract record of births showing an individual with the applicant's name and a DOB of 1 February XXXX
* Registry of Vital Records and Statistics – Copy of Record of Birth showing a DOB of 1 February XXXX
* VA records, dated 16 August 2013, 10 pages – Spinal Cord Injury
* VA records, dated 16 August 2013, Addendum
* VA records, dated 16 August 2013, 2 pages, Urodynamics Consult
* VA records, dated 16 August 2013, pages 1, 2, 5 and 6– Psychosocial Assessment

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.  On 19 May 1965, the applicant was inducted into the Army of the United States and indicated his DOB was 31 January XXXX.  This is the only DOB listed in his military records.

3.  Following training as an infantryman the applicant completed basic airborne school and served in Vietnam from on or about June 1966 to May 1967.  On 
12 May 1967, he was released and transferred to the United States Army Reserve.  

4.  On 27 November 1968, he enlisted in the Regular Army (RA) and served until he was discharged for immediate reenlistment on 15 November 1970. 

5.  On 16 November 1970, he reenlisted in the RA.  On 30 January 1971, he was assigned to Germany where he received nonjudicial punishment (NJPs) under the provisions of Article 15, Uniform Code of Military justice for being absent  from his place of duty and leaving the scene of an accident.  He was also counseled for several instances of insufficient funds and not paying just debt.

6.  In October 1972, he was seriously injured in a multiple car collision on the Autobahn.  The sworn statement of a passenger indicated the applicant had been drinking; his driving frightened the passenger who asked to be let out (of the car).  The applicant stopped, dropped off the passenger and made a U-turn into oncoming traffic.

7.  The applicant was being processed for physical disability retirement when the decision was made that his injuries were the result of his own misconduct.  

8.  On 12 February 1973, he was discharged under the provisions of Paragraph
13-5, Army Regulation 635-200, for misconduct due to frequent incidents of a discreditable nature.

9.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart 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 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.

DISCUSSION AND CONCLUSIONS:

1.  By his own admission the applicant's head wound was not treated while he was in the service.  His situation does not meet the regulatory requirement for award of the Purple Heart.  Award of the Purple Heart requires that the individual must have been wounded as a 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.  The applicant's claim does not meet this criteria and the evidence that he provided is not sufficient to meet the criteria for award of the Purple Heart.  

2.  The applicant provided no evidence to substantiate or corroborate that he had surgery at Duke University Hospital in 1973 that resulted from hostile/enemy action.  

3.  For historical purposes the Army has an interest in maintaining the integrity of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, there is a reluctance to recommend that those records be changed.  While it is understandable the applicant desires to have his military records reflect the requested DOB; however, there is not a sufficiently compelling reason for compromising the integrity of the Army’s records at this late date.  

4.  The applicant is advised that a copy of this decisional document will be filed in his official record.  This should serve to clarify any questions or confusion in regard to the difference in the DOB recorded in his military record and the DOB recorded on his birth records.

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)                                         AR20140015138



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ABCMR Record of Proceedings (cont)                                         AR20140015138



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