IN THE CASE OF:  

		BOARD DATE:  23 April 2015	  

		DOCKET NUMBER:  AR20140016993 


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 to be awarded the Purple Heart for combat injuries sustained while in Vietnam.

2.  The applicant states he was injured in Vietnam but was not awarded the Purple Heart.  He only recently learned he could apply to the Board for correction of this error.

3.  The applicant provides:

* letter of support, dated 3 September 2014, from Illinois State Senator Dxxx Rxxxxxx
* letter of support, dated 24 July 2014, from the applicant's former platoon sergeant (January to April 1970) while both served in Vietnam
* DA Form 8-274 (Medical Condition - Physical Profile Record), dated 6 April 1970, describing the applicant's medical conditions of alternating exophoria (condition where eyes are deviated outward) and diplopia (double vision)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* letter, dated 14 September 2007, from the Department of Veterans Affairs (VA) describing the applicant's ratings for regarding bilateral tinnitus and alternating exophoria
* VA Rating Decision, dated 28 August 2007 regarding bilateral tinnitus and alternating exophoria
* VA Statement of Case regarding showing the applicant receiving a rating of 50 percent for posttraumatic stress disorder

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 16 July 1969.  After completing initial training, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  On 15 April 1970, with the onset of his medical conditions of alternating exophoria and diplopia, he was given the MOS 57A (Duty Soldier).  The highest rank/grade held was specialist four/E-4.  He served in Vietnam from 8 December 1969 to 14 February 1971.

3.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) does not show he was placed into a "Patient" status at a medical treatment facility at any time during his period of service.

4.  Item 40 (Wounds) of his DA Form 20 is blank.

5.  Item 41 (Awards and Decorations) of his DA Form 20 does not show award of the Purple Heart.

6.  There is no evidence in the available record that shows he was awarded the Purple Heart.  There is also no evidence that shows he sustained any injuries as a result of hostile action or that he was treated for wounds sustained as a result of hostile action.  

7.  He was released from active duty on 14 February 1971.  His DD Form 214 does not show award of the Purple Heart.

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

9.  The applicant provides:

	a.  A letter of support from his former platoon sergeant, which essentially states:

* he was the applicant's infantry platoon sergeant from January 1970 to April 1970
* he was present when the incidents described by the applicant occurred
* the incident in January 1970 involving incoming artillery was extremely violent and, unfortunately, not uncommon due to changing unit boundaries and the lack of accurate fire support
* the incident in February 1970 took place while they were operating in the Chon Thanh district, an area heavily defended by Viet Cong
* a sister battalion to the one both were assigned was wiped out at this location on 17 October 1967
* the enemy units' weaponry included the shoulder-fired rocket propelled grenade launcher, and other even larger weapons which may have created much larger explosions
* the applicant should have been recommended for the Purple Heart and he strongly feels the applicant deserves this award for the wounds he sustained

	b.  A letter of support from the applicant's State Senator which expresses his support for the favorable consideration of the applicant's request for the Purple Heart.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, 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 been treated at the time by medical personnel, and the medical treatment must have been made a matter of official records.

DISCUSSION AND CONCLUSIONS:

1.  For the Purple Heart to be awarded, the preponderance of the evidence must clearly show a wound's existence, that it was treated and recorded at the time by medical personnel, and that it directly resulted from hostile action.  Neither the record nor the evidence offered by the applicant fulfills this requirement.  

2.  The applicant provides a document from his medical record which shows he developed alternating exophoria and diplopia while in Vietnam.  Nothing in the document affirms these conditions were the direct result of hostile action. 

3.  He provides a letter from his former platoon sergeant which suggests he was wounded, but, apart from providing no details as to what wounds may have been sustained, this letter is not supported by the evidence of record and therefore is insufficient evidence to support his request.

4.  The documentation provided from VA verifies he has conditions which VA has determined were service-connected.  None of those documents identify a specific wound, that that wound was treated and officially recorded at the time by medical personnel, and that it was sustained as a direct result of hostile action.  

5.  Absent evidence to the contrary, there is no basis to grant the award requested.

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)                                         AR20140016993





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ABCMR Record of Proceedings (cont)                                         AR20140016993



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