IN THE CASE OF:	   

		BOARD DATE:	  16 April 2015

		DOCKET NUMBER:  AR20140015580 


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 that he be awarded the Purple Heart for his injuries in Vietnam.

2.  The applicant states, in effect, that he suffered a concussion from a mine blast when his bulldozer ran over a mine.  He goes on to state that he had no idea what happened until he came to with a medic and other guys standing over him.  He further states that he has suffered from seizures for the past 44 years as a result of the concussion.

3.  The applicant provides a five-page letter explaining his application, copies of medical treatment records from his VA records, seven third-party letters, a page from an operations report and copies of two 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.  The applicant enlisted in the Regular Army on 1 October 1968 for a period of 3 years and training as an engineer heavy equipment operator and maintainer.  He completed his basic training at Fort Dix, New Jersey and his advanced individual training as a crawler tractor operator at Fort Leonard Wood, Missouri, before being transferred to Vietnam on 14 March 1969 for assignment to the 919th Engineer Company.

3.  He was promoted to the pay grade of E-5 on 10 February 1970 and departed Vietnam on 18 October 1970 for assignment to Fort Belvoir, Virginia where he remained until he was honorably released from active duty (REFRAD) on 
30 September 1971.  He had served 3 years of active service and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued at the time of his REFRAD shows he was awarded the Army Commendation Medal, Army Good Conduct Medal, National Defense Service Medal, Vietnam Service Medal and Republic of Vietnam Campaign Medal with Device 1960).

4.  A review of the applicant’s records failed to show any evidence of the applicant being wounded or injured and the Vietnam Casualty Listing failed to show a listing for his name.

5.  Documents provided by the applicant show he returned from Vietnam on leave in April 1970 and suffered a seizure.  He was transferred to Valley Forge General Hospital in Pennsylvania and was issued a physical profile for a seizure disorder on 28 May 1970.  He returned to Vietnam and underwent a follow-up examination at the 93rd Evacuation Hospital and was prescribed medication for a seizure disorder.  He is currently being evaluated by the VA.

6.  The third party statements submitted by the applicant with his application serve to verify that the applicant’s bulldozer hit a land mine and that the applicant was thrown from the machine as a result of the blast.

7.  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.


8.  Military Personnel (MILPER) Message Number 11-125, issued by the U.S. Army Human Resources Command, dated 29 April 2011, stated the Secretary of the Army had approved Army Directive 2011-07 (Awarding the Purple Heart).  The directive provides clarifying guidance to ensure the uniform application of advancements in medical knowledge and treatment protocols when considering recommendations for award of the Purple Heart for concussions (including mild traumatic brain and concussive injuries that do not result in a loss of consciousness).  The U.S. Army Human Resources Command has verified that award of the Purple Heart for a TBI injury is retroactive only to 11 September 2001.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant has provided sufficient evidence to show that he was thrown from his bulldozer when it hit a land mine in Vietnam, he has not provided sufficient evidence to show that treatment for his immediate injuries were made a matter of record.

2.  While the applicant has provided evidence to show he was subsequently treated for a seizure disorder when he returned to the United States on leave, that in itself does not establish a wound/injury received as a result of enemy action that required treatment by medical personnel and was made a matter of record.

3.  Unfortunately, the award of the Purple Heart for TBI is retroactive only to 
11 September 2001.  Accordingly, it does not appear that the applicant is eligible for award of the Purple Heart based on a TBI.

4.  In view of foregoing, there appears to be no basis for granting his request for award of the Purple Heart. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x_____  ___x___  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   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)                                         AR20140015580





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ABCMR Record of Proceedings (cont)                                         AR20140015580



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