BOARD DATE: 30 July 2015
DOCKET NUMBER: AR20140021546
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 injuries sustained in combat in Vietnam.
2. The applicant states that he was injured by enemy mortar fire in Vietnam and was evacuated to a hospital in Japan for a ruptured left ear drum and was eventually sent to Walter Reed Army Medical Center for treatment. He goes on to state that the regulatory criteria for award of the Purple Heart clearly states that concussion injuries caused by enemy explosives are a qualifying injury.
3. The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), orders assigning him to a unit in Vietnam, VA identification cards, Western Union Telegram, and letters from his congressional representative.
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 was inducted on 21 January 1969. He completed his basic training at Fort Campbell, Kentucky and his advanced individual training as a cannoneer at Fort Sill, Oklahoma before being transferred to Vietnam on 17 June 1969.
3. The applicant was assigned to A Battery, 1st Battalion, 27th Artillery Regiment and on 14 July 1969 he was transferred to the hospital at Camp Zama, Japan and remained there until 4 October 1969 when he was transferred to Walter Reed General Hospital in Washington, D.C.
4. On 17 November 1969, he was transferred to Fort Knox, Kentucky where he remained until he was honorably released from active duty (REFRAD) on 20 January 1971 due to the expiration of his term of service. He had served 2 years of active service and his DD Form 214 issued at the time of his REFRAD shows he was awarded the National Defense Service Medal, Vietnam Campaign Medal, and the Vietnam Service Medal.
5. A review of his official records failed to reveal any evidence showing that he was wounded as a result of enemy action or that he was treated for any such wounds or injuries. There is also no evidence of his being awarded the Purple Heart. Additionally, his separation physical/medical examination makes no mention of any such wounds and his name is not contained on the Vietnam Casualty Listing. However, his records do indicate that was treated for a reoccurring left knee injury.
6. 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.
7. 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. The applicants contentions and supporting documents have been carefully considered and while the sincerity of the applicants claim that he was wounded in Vietnam in action against the enemy is not in doubt, the applicant has failed to show through the available evidence of record and the evidence submitted with his application that such was the case.
2. Additionally, concussion injuries are retroactive only to 11 September 2001, well after the date he claims he was injured.
3. Therefore, in the absence of evidence to show that he was wounded as a result of enemy action and that treatment was made a matter of record, there appears to be no basis for granting his request for a Purple Heart at this time.
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.
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