IN THE CASE OF:	   

		BOARD DATE:	  22 September 2015

		DOCKET NUMBER:  AR20150003310 


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 a second Purple Heart.

2.  He states that he was exposed to an explosion while serving in South Vietnam.  He contends that a rocket propelled grenade (RPG) hit the track that he was riding on and knocked him to the ground unconscious during Dewey Canyon II.  As a result of this incident, he was later diagnosed with a traumatic brain injury (TBI) thus he is eligible for a second Purple Heart.

3.  He provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a U.S. Army Human Resources Command webpage article
* his Department of Veterans Affairs (VA) rating decision and disability compensation letters

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 Army of the United States on 12 May 1970 and he held military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman).  He was honorably released from active duty on 2 December 1971.  Among his awards he received the Purple Heart and Combat Infantryman Badge. 

3.  His medical records are not available for review.  His DA Form 20 (Enlisted Qualification Record) shows:

   a.  he served in Vietnam from 25 December 1970 to 27 July 1971 with Company D, 1st Battalion, 11th Infantry, 1st Brigade, 5th Infantry Division (Mechanized);
   
   b.  he served from 28 July 1971 to 28 November 1971 in Vietnam with two separate companies of 1st Battalion, 7th Cavalry, 3rd Brigade (Separate), 1st Cavalry Division; 

   c.  item 40 (Wounds) he sustained a laceration to his right arm from enemy shrapnel (no date provided); and
   
   d.  item 41 (Awards and Decorations) shows among his awards the Purple Heart and Combat Infantryman Badge.

4.  General Orders Number 1520, dated 19 July 1971, issued by Headquarters, 1st Infantry Brigade, 5th Infantry Division (Mechanized), awarded him the Purple Heart for wounds received in connection with military operations against a hostile force on 24 March 1971.

5.  A review of the Awards and Decorations Computer Assisted Retrieval System maintained by the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal orders awarding him a second Purple Heart.  The Vietnam Casualty Roster does not list his name.

6.  He provided his VA documents showing he was awarded a service connected disability rating for TBI among other ailments based on his award of the Purple Heart.  The Purple Heart was considered supportive evidence that he suffered a TBI during service.  Post service treatment reports show he was treated and diagnosed with residuals of TBI.  At a VA examination he reported a history of mild to moderate TBI during military service that had been stabilized.

7.  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 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. Examples of enemy-related injuries which justify award of the Purple Heart are injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; and concussion injuries caused as a result of enemy generated explosions.  Mild TBI or concussions severe enough to cause either loss of consciousness or restriction from fully duty due to persistent signs, symptoms or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the concussive incident.   Further guidance states that examples of injuries or wounds which clearly do not justify award of the Purple Heart are mild TBI or concussions that do not result in the loss of consciousness or restriction from full duty due for a period of greater than 48 hours (emphasis added) due to persistent signs, symptoms, or physical finding of impaired brain function. 

DISCUSSION AND CONCLUSIONS:

1.  The criteria for award of the Purple Heart requires the submission of substantiating evidence to verify that a Soldier received a wound/injury as a result of hostile action, the wound/injury required medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.

2.  The available evidence shows that he was diagnosed with TBI post-service and he contends he received this injury as the result of being thrown from the back of his track vehicle after it was hit by an RPG.

3.  His medical records are not available for review and he did not provide any service medical records to support his contention.  It appears that he was awarded the Purple Heart for a laceration to his right arm sustained from enemy shrapnel and that his service connected disability rating for TBI is based on this award.  The applicant's record is void of any evidence and he has not provided any substantiating evidence that shows he suffered a concussion as a result of hostile action, that he was treated for a concussion by medical personnel, and that his treatment was made a matter of official record.  All three components are required for award of the Purple Heart.  His injury is not in question but its origin cannot be determined to be the result of hostile action.
4.  Notwithstanding the applicant's sincerity, there is an insufficient evidentiary basis for granting the applicant a second Purple Heart.  

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)                                         AR20150003310



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ABCMR Record of Proceedings (cont)                                         AR20150003310



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