IN THE CASE OF:    

		BOARD DATE:  25 June 2015	 

		DOCKET NUMBER:  AR20140019067


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, in effect, reconsideration of the Army Board for Correction of Military Records (ABCMR) previous decisions.  Specifically, through counsel, he requests reversal of the Army's decision to deny him award of the Purple Heart.      

2.  The applicant states, in effect, he never received the Purple Heart for injuries received in the Republic of Vietnam on 4 October 1968. 

3.  The applicant, through counsel, submits new documentation as well as previous documentation from previous cases.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, appeal of the prior ABCMR decisions and requests the applicant be awarded the Purple Heart.  

2.  Counsel states, in effect:

     a.  The applicant served in the U.S. Army in the Republic of Vietnam and sustained combat injuries in the line of duty on 4 October 1969 [sic – 1968]. 

     b.  He was attached to Company B, 2nd Battalion, 22nd Infantry Regiment, 25th Infantry Division.  He was in an armored mechanized unit operating in an area known as the Iron Triangle and was wounded in combat operations on        4 October 1968.
     c.  He was riding on an armored personnel carrier (APC) that struck a landmine and was blown off the top and violently hit the ground.  He was bleeding from his nose and right ear, disoriented, and could not recall anything that happened the rest of that day.  

     d.  He was not taken out of the field until the next day (5 October 1968) and flown by helicopter to the 12th Evacuation Hospital in Cu Chi, South Vietnam.  He received treatment for a traumatic perforation of the right tympanic membrane.  He was also given medication for pain, bed rest for a concussion, and left shoulder pain.  

     e.  He remained in the hospital from 5 to 31 October 1968 and was returned to light duty in the field as a perimeter guard.  

     f.  The applicant exhausted every administrative remedy available and now, with the new standards regarding traumatic brain injury and concussions promulgated by the Secretary of the Army, it gives him new hope that his injuries will finally be recognized as combat injuries sustained by enemy action, requiring medical treatment and hospitalization for weeks in Vietnam, and that equity will be served when applying these new criteria to his facts.

3.  Counsel submits the following as evidence (exhibits):

     a.  Exhibit 1 – DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), dated 10 October 2014.

     b.  Exhibit 2 – Secretary of the Army Memorandum, subject: Army Directive 2011-07 (Awarding to the Purple Heart), dated 18 March 2011 (10 pages).

     c.  Exhibit 3 – DA Form 4187 (Personnel Action) to Commander, U.S. Army Human Resources Command (HRC), subject: Purple Heart Award, dated 
6 August 2014 with 8 attachments (49 pages):

* a one-page narrative authored by the applicant
* Order to Report for Induction, dated 14 December 1967
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* NGB Form 22 (Report of Separation and Record of Service)
* 8 witness statements
* 9 pages of Medical Documents
* other documents

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 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.  Incorporated herein by reference are military records that were summarized in previous considerations of the applicant's case by the ABCMR in Docket Numbers AR1999030486 on 24 February 2000, AR2001055604 on 19 July 2001, AR2002075331 on 26 November 2002, and AR20060000781 on 2 May 2006. 

     a.  In the original consideration of his case that occurred on 24 February 2000, the applicant submitted a medical statement indicating he had sustained an ear injury in October 1968 and in July 1999, officials from the Army's Personnel Command informed him that he was not authorized an award of the Purple Heart because his injury was considered accidental.  In that original request for award of the Purple Heart, the applicant noted that he had been blown 20 to 30 feet into the air when his APC hit a large mine.  He stated the explosion blew off one of his shirt sleeves and his right-pant leg.  He indicated that he was flown to a field hospital and was told his right eardrum was completely perforated and he would likely go home.  He also stated that his shoulder was broken.  He indicated that approximately 12 days later, he was taken back to the field and never heard anything about the incident.  His medical treatment record contained an 18 October 1968 statement, which indicated his "ear [was] now infected" and he was told to return in 2 weeks.  A 30 October 1968 entry on that same record noted that his ear had healed.  Treatment occurred at the 12th Evacuation Hospital.

     b.  In his July 2001 reconsideration request for the Purple Heart, he submitted a witness statement from a fellow Soldier that was not previously considered.  He also submitted a statement from his civilian physician who merely related information the applicant had told him about his ear injury.  In considering that case, the Board noted that a search of the National Archives failed to produce any evidence of an APC incident in unit files.  The absence of that information was one of the reasons the 2001 request was denied.

     c.  In the November 2002 case, the applicant noted his perforated tympanic membrane and his broken shoulder as the basis for his entitlement to the Purple Heart.  In that application he submitted two new witness statements and the one seen by the July 2001 Board.  One of the witness statements noted the applicant had been hospitalized for 25 days and not 12 as previously claimed.  The Board concluded the two new statements were not sufficient by themselves as a basis for an award of the Purple Heart in the absence of evidence in the record showing he was wounded as a result of enemy action.

     d.  In the May 2006 reconsideration case, the applicant submitted a fourth eyewitness statement, another extract from his service medical records, and the back page of his 1969 physical examination.  Also included in documents provided to the Board was a copy of the daily staff journal log from the applicant's unit for 4 October 1968.

          (1)  The new eyewitness statement notes the author was a platoon sergeant and acting platoon leader with the applicant's unit in early October 1968.  The author indicated the applicant was on top of the APC and directly above the explosion.  He noted the applicant was blown off the APC and that he recalled the applicant dazed and staggering around, that the lower portions of his right leg uniform was tattered and that it was apparent he had a concussion, and was bleeding from the nose and ears.  He noted other Soldiers were also injured and that the applicant was away from his platoon for about 2 weeks.  He stated the high turnover of killed or wounded officers may have caused negligence in the applicant's case.

          (2)  The new medical document notes the applicant was treated for a traumatic perforation of his right ear drum, and directed that he return in           2 weeks.  The entry appears between a February 1969 entry made at Fort Bragg, NC and an October 1968 entry indicating the applicant would return to no field duty.  His 1969 physical examination notes the applicant's perforated ear drum.

          (3)  The staff journal entry notes the applicant's unit, the 2nd Battalion, 22nd Infantry Regiment, had two tracks hit mines on 4 October 1968, both tracks were total losses and that a total of seven enlisted Soldiers were "dusted off" during the 24 hour period ending that day. One entry, which the applicant refers to noted that three Soldiers were wounded in that action.

          (4)  In an undated statement, included with documents provided to the Board by the applicant, he indicated that he including a photograph of a Purple Heart award that "some Officer handed out to the wounded soldiers." In a 1999 statement to the Army's military awards branch, he noted he always thought that his experience and injuries earned him a Purple Heart and in a 2004 statement to his Congressional Representative, he stated he was never awarded a Purple Heart but thought he deserved one.

          (5)  In a civil complaint file, initiated by the applicant in West Virginia, the statement of his case noted that he had been thrown from the vehicle and suffered multiple wounds, including a broken shoulder, concussion and a perforated tympanic membrane.  Due to the seriousness of his wounds, he was evacuated to the 12th Evacuation Hospital and spent 25 agonizing days in a M.A.S.H. (Mobile Army Surgical Hospital).

          (6)  In a 1983 Army Report of Medical History, completed by the applicant, he made no mention of any ear, nose, or throat trouble, no hearing loss, and no broken bones.  He noted no treatment for any combat incurred injuries or hospitalization of any kind.

3.  The applicant was inducted into the Army of the United States on 4 January 1968.  He completed training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He attained the rank/grade of specialist four (SP4)/E-4.

4.  Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from on or about 23 June 1968 to   19 June 1969.   

5.  Item 38 (Record of Assignments) shows he was assigned to two different units during his service in the Republic of Vietnam:

* Company B, 2nd Battalion, 22nd Infantry Regiment, 25th Infantry Division
* Company C, 52nd Infantry, 716th Military Police Battalion  

6.  Item 40 (Wounds) of his DA Form 20 is blank, indicating the absence of any documented wounds during his period of military service.  His available personnel record does not contain orders for the Purple Heart.  His medical records are very limited with some documents provided by the applicant. 

7.  On 19 December 1969, he was honorably released from active duty and transferred to the U.S. Army Reserve.  The DD Form 214 he was issued shows he was credited with the completion of 1 year, 11 months, and 16 days of total active service during this period, including 11 months and 27 days of foreign service in Vietnam.  His DD Form 214 does not indicate he was awarded the Purple Heart.

8.  His name does not appear on the Vietnam casualty roster.

9.  A review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army HRC, failed to reveal any orders for the Purple Heart pertaining to the applicant.

10.  The applicant provides, through counsel, the following document (only the new documents will be discussed):

     a.  Secretary of the Army Memorandum, subject: Army Directive 2011-07 (Awarding of the Purple Heart), dated 18 March 2011.  This directive clarifies guidance on the uniformity of awarding the Purple Heart when considering the award as it relates to concussions.  The guidance in the directive was effective immediately and did not indicate it was to be considered retroactively.  

     b.  DA Form 4187, dated 6 August 2014, to Commander, HRC, requesting award of the Purple Heart with new documents and Secretary of the Army's new guidance for consideration.  HRC responded by a memorandum, dated 
3 October 2014, stating HRC could not act upon the request and it had to go before the ABCMR as it had been previously denied by the ABCMR.

     c.  Statement from the applicant's then company commander, dated
6 October 2010, attested to the applicant being injured when an APC he was riding in struck a landmine.  He states (Applicant) was evacuated via helicopter ambulance ("dust-off") to the 12th Evacuation Hospital in Cu Chi.  He further stated that no one was evacuated by "dust-off" without having sustained injuries in combat.  He also states that company record keeping was not performed well and through his observations, having been treated at the hospital at one point, it was controlled chaos and thus records were not as accurate as they should have been.  He states that he believes (Applicant) met the requirements and is well deserving of the Purple Heart.

     d.  Two other eye-witness statements were from members of his squad - one from the APC driver and the other a squad member riding on the APC.  Both attest to the APC hitting a landmine on 4 October 1968 and (Applicant) was thrown from the top.  The (Applicant) was found suffering from an injury to his shoulder, ear, and nose as evident by blood coming from the nose and ears.  Each state the applicant was evacuated by "dust-off" to the 12th Evacuation Hospital and was gone for about a month.   


11.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound, injury or death having been the result of an enemy or as a result of hostile act.  Substantiating evidence must be provided to verify that the wound, injury or death was the result of enemy or hostile act, the wound or injury must have required treatment by medical officials, and the medical treatment must have been made a matter of official record.  Examples of enemy-related injuries which clearly justify the award are:

* injury caused by enemy bullet, shrapnel, or other projectile created by enemy action
* injury caused by enemy placed mine or trap
* injury caused by enemy release chemical, biological, or nuclear agent
* injury caused by vehicle or aircraft accident resulting from enemy fire
* concussion injuries caused as a result of enemy generated explosions

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention, through counsel, that he should be awarded the Purple Heart was carefully considered and appears to have merit.  

2.  The applicant provided new evidence not previously reviewed by the ABCMR that verifies and corroborates he sustained injuries as a result of an act of an enemy in combat operations in the Republic of Vietnam. 

3.  Eyewitness accounts and documents provided verify that he sustained injuries after being blown off his APC as a result of it striking an enemy landmine.  This was also substantiated/verified by his then company commander, who attested to the fact that the applicant was medically evacuated to the 12th Evacuation Hospital as a result of his APC striking a landmine.  His then platoon sergeant and acting platoon leader also attested to the fact that the applicant was blown off his APC as a result of striking a landmine.  The platoon sergeant states the applicant was dazed and staggering around with an apparent concussion, head injury, and he was bleeding from the nose and ears.  Each individual stated that poor records keeping existed at the time and the chaos of a very busy hospital during the applicant's time may have contributed to his injuries not being properly documented.  His commander goes on to state he believes the applicant met the requirements and is well deserving of the Purple Heart.  

4.  Medical documents reveal the applicant was treated for a traumatic perforated right ear at the 12th Evacuation Hospital on 5 October 1968.  Creditable witness statements indicate he received injuries from an enemy act (being blown off an APC due to a landmine explosion).  He was evacuated to the 12th Evacuation Hospital for medical treatment from appropriate medical officials, and he was treated for an injury on or around the date of the incident; therein meeting the Purple Heart award criteria as outlined in the governing Army regulation.  

5.  Therefore, it is reasonable to conclude the applicant was wounded as a result of hostile action on 4 October 1968 and received medical treatment for those wounds starting on 5 October 1968, which should have been properly entered into his applicable personnel records at the time of the event; but it was not.

6.  Based on the foregoing and as a matter of equity, there is sufficient evidence to justify awarding the applicant the Purple Heart for injuries sustained on            4 October 1968 in the Republic of Vietnam.

BOARD VOTE:

____X___  ____X___  ____X___ GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief and to amend the decisions of the ABCMR set forth in Docket Numbers AR1999030486, AR2001055604, AR2002075331, and AR20060000781.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* awarding him the Purple Heart for wounds received in action in the Republic of Vietnam on 4 October 1968 
* adding the Purple Heart to his DD Form 214



      _______ _   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)                                         AR20100015543



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ABCMR Record of Proceedings (cont)                                         AR20140019067



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