IN THE CASE OF:	  

		BOARD DATE:	  18 August 2015

		DOCKET NUMBER:  AR20150001047 


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 military service records to show he sustained an injury on 25 October 1967 and was awarded the Purple Heart.

2.  The applicant states that while serving in the Republic of Vietnam (RVN) he sustained an injury to his scrotum during an ambush and firefight on 25 October 1967.

   a.  He states that his injury was not recorded and he did not receive the Purple Heart.  He also states, "I had been reporting to all military doctors about my injury" and adds that he was never advised to submit a claim.

   b.  On 18 July 2001, the Department of Veterans Affairs (VA) granted him service connection and compensation for the injury, but it was not retroactive to 25 October 1967.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), two letters of support, and his 
VA rating decision.

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 into the U.S. Army on 19 October 1966.  He was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).

3.  His DA Form 20 (Enlisted Qualification Record) shows in:

* item 31 (Foreign Service) he served in Vietnam from 23 August 1967 through 22 April 1968
* item 38 (Record of Assignments):

* Company D, 2nd Battalion, 12th Infantry, 25th Infantry Division, from 26 August 1967 through 31 October 1967
* Company A, 2nd Battalion, 12th Infantry, 25th Infantry Division, from
1 November 1967 through 20 February 1968
* Medical Holding Detachment, 249th General Hospital, effective
21 February 1968

* item 40 (Wounds) gunshot wound, right arm and forearm, 6 February 1968
* item 41 (Awards and Decorations):

* National Defense Service Medal
* Expert Marksmanship Qualification Badge with Rifle Bar (M-14) 
* Vietnam Service Medal
* RVN Campaign Medal with Device (1960)
* Combat Infantryman Badge
* Purple Heart

4.  Headquarters, 12th Evacuation Hospital (Surgical Mobile), General Orders Number 28, dated 9 February 1968, awarded the applicant the Purple Heart for wounds received in action against a hostile force on 6 February 1968.

5.  A review of the applicant's military personnel records failed to reveal a copy of his Physical Evaluation Board (PEB) proceedings.

6.  Department of the Army, Special Orders Number 75, dated 18 April 1969, shows the applicant was determined to be unfit for duty by reason of physical disability.  He was released from active duty on 25 April 1969 and placed on the Temporary Disability Retired List (TDRL) effective 26 April 1969.

7.  The applicant's DD Form 214 shows he was honorably retired from active duty on 25 April 1969 and placed on the TDRL.

   a.  He had completed 2 years, 6 months, and 20 days of total active duty service this period that included 8 months of foreign service.

   b.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), as corrected by a DD Form 215 (Correction to DD Form 214), issued on 5 February 2015, shows the:

* Purple Heart
* Army Good Conduct Medal (1st Award)
* National Defense Service Medal
* Vietnam Service Medal with 3 Bronze Service Stars
* RVN Campaign Medal with Device (1960)
* RVN Gallantry Cross with Palm Unit Citation
* RVN Civil Actions Honor Medal First Class Unit Citation
* Combat Infantryman Badge
* Expert Marksmanship Qualification Badge with Rifle Bar (M-14) 

8.  A review of the applicant's military personnel records failed to reveal any orders or other evidence that shows he was awarded a second award of the Purple Heart.

9.  A review of The Adjutant General's Office, Casualty Division's Vietnam casualty roster shows the applicant as a casualty on 6 February 1968, casualty status code 23 (hostile wounded in action:  not serious, hospitalized).  This review failed to show any additional casualty entries pertaining to the applicant.

10.  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 Awards and Decorations Branch of the U.S. Army Human Resources Command, failed to reveal any orders for a second award of the Purple Heart pertaining to the applicant.

11.  Based on his placement on the TDRL, the applicant was ordered to report for periodic physical examinations in October 1970 and June 1971.

12.  A Standard Form 88 (Report of Medical Examination), dated 21 June 1971, shows the reason for the examination was "TDRL."  It also shows in:

* Clinical Evaluation:

* item 31 (Abdomen and Viscera, include hernia) "X" in the box indicating "Normal"
* item 35 (Upper Extremities) "X" in the box indicating "Abnormal"
* item 41 (Neurologic) "X" in the box indicating "Abnormal"

* Measurements and Other Findings:

* item 73 (Notes and Significant or Interval History) is blank (no entries)
* item 74 (Summary of Defects and Diagnoses):

* Neuropathy, median nerve, right, incomplete, mild, at elbow
* Neuropathy, ulnar nerve, right, incomplete, mild, at elbow

* item 77 (Examinee) the examining physician found the applicant was not qualified for further military service

13.  Office of The Adjutant General, Washington, DC, Letter Orders Number
D 1-262, dated 10 January 1972, removed the applicant from the TDRL on
31 January 1972 and permanently retired him effective 1 February 1972.

14.  In support of his application the applicant provides the following documents.

   a.  A letter from First Sergeant (1SG) J___ D. S____, U.S. Army (Retired), dated 5 March 2003, in support of the applicant's claim for a wound sustained on 25 October 1967.  He stated he was assigned as the senior medic, Company A, 2nd Battalion, 12th Infantry, 25th Infantry Division in the RVN.  It shows, in pertinent part, "As is the case in many battles, there were several others that were wounded, but did not require evacuating, [the applicant] was among these.  As I recall [the applicant] was wounded in the groin by grenade fragments."   
A further review of the letter failed to show the applicant was treated for his wounds/injuries.

   b.  VA Regional Office, Huntington, WV, Rating Decision, dated 17 July 2013, that shows the VA granted the applicant service connection for residuals of a shrapnel wound to the scrotum, to include erectile dysfunction and nonpainful scar, with an evaluation of 0 percent effective 15 March 2012 (the date of receipt of the claim as he was discharged from the military over one year ago).  Entitlement to special monthly compensation based on loss of use of creative organ was also granted from 15 March 2012.

   c.  A letter from Colonel B___ R. Q___, U.S. Army (Retired), dated 23 November [2014], in support of the applicant's effort to correct his records.  He stated, in his opinion, the letter from 1SG J___ D. S___, who was the senior medic in the company, coupled with the VA rating decision, "clearly document that you were wounded [on 25 October 1967]."

15.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.  The Purple Heart is awarded to any member who was wounded or killed as a result of enemy action.  A wound is defined as an injury to any part of the body from an outside force, element, or agent sustained in action in the face of the armed enemy or as a result of a hostile act of such enemy.  A physical lesion is not required; however, in order to support awarding a member the Purple Heart, it is necessary to establish the wound for which the award is being made required treatment by medical personnel and the medical treatment for the wound or injury received in action must have been made a matter of official record.  An oak leaf cluster will be awarded to denote a second award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his military service records to show he sustained wounds/injuries on 25 October 1967 and was awarded a second award of the Purple Heart was carefully considered.

   a.  The applicant's records fail to show that he was injured or wounded on 25 October 1967.

   b.  His name is listed once on the Vietnam casualty roster for wounds received in action on 6 February 1968.

   c.  Records show the applicant sustained gunshot wounds to his right arm and forearm on 6 February 1968, and that he was awarded the Purple Heart for injuries sustained in connection with military operations against a hostile force.

   d.  Based on the results of a PEB, the applicant was retired from active duty on 25 April 1969 and placed on the TDRL where he remained for almost 3 years. 

    	(1)  He underwent at least two physical examinations while on the TDRL. However, there is no evidence that he reported a wound/injury to his scrotum having occurred on 25 October 1967.
    	(2)  It is reasonable to conclude that the applicant would have sought medical treatment for the wound/injury when he returned to base camp, particularly given the nature and location of the wound the applicant describes.  However, there is no evidence of record that he ever reported such wound or injury, including during his physical disability evaluation processing that spanned a period of about 3 years.

2.  The applicant provides a letter from 1SG J___ D. S___, U.S. Army (Retired) that was authored on 5 March 2003, more than 35 years after the matter that is under review in this case.

   a.  At the time, 1SG S____ was the senior medic in the applicant's company.  He stated that there were several Soldiers who were wounded, but did not require medical evacuation and that the applicant was among them.  The evidence of record fails to show that the applicant's wound required treatment, that the senior medic (or any medical personnel) treated his wound, or that any such medical treatment was made a matter of official record.

   b.  The VA rating decision shows he was granted service connection for residuals of a shrapnel wound to the scrotum based on a claim submitted on 15 March 2012.

3.  In view of the foregoing, it is concluded that the evidence provided by the applicant is insufficient to correct his medical records to show he was wounded or injured on 25 October 1967 and/or to support his claim to a second award of the Purple Heart.

4.  The Army has an interest in promoting the reliability of its medical records.  Alteration, addition, or creation of a diagnosis or treatment in those records after the fact may lead to fundamental questions about the veracity of the records in this case or any given case generally.  For these reasons, the Board declines to add a previously undocumented medical condition to the applicant's medical 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)                                         AR20150001047



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ABCMR Record of Proceedings (cont)                                         AR20150001047



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