IN THE CASE OF:	  

		BOARD DATE:	  8 October 2015

		DOCKET NUMBER:  AR20150004142 


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 reconsideration of his earlier request for award of the Purple Heart.

2.  The applicant states he was previously denied the Purple Heart on 25 April 2013 and submitted a request for reconsideration on 15 April 2014, which was 10 days prior to the 1-year suspense.  He was notified that his request required his signature.  He signed the application and mailed it back in November 2014.  His request was administratively closed in December 2014 by reason of not having been received within 1 year of the original Board's decision.  In his request for reconsideration, he stated: 

* he sustained a concussion in Vietnam and was sent to Japan to recover from this concussion
* he was not sent back to Vietnam because of the medical issues with hearing loss, headaches, and post-traumatic stress disorder (PTSD) which are all service-connected 
* he was given a permanent physical profile and upon returning stateside, he was assigned to supply, then finance, then special services
* he was also treated at Fort Meade, MD for ears, nose, and throat issues 
* it was clear that the medical issues of brain concussion and resulting hearing loss were the reason he could not perform duties in his artillery specialty 
* his records also show he was seeking help before the 20 February 1968 incident which reflects hearing damage; however, after this date severe permanent damage was done due to this land mine explosion
* he was treated at multiple hospitals in Vietnam (Chu Lai, Qui Nhon (67th Evacuation Hospital), and Cam Ranh Bay (possibly the 6th Convalescent Hospital)) 
* his 14-16 May 1968 medical records reflect he was transferred from the 6th Convalescent and the 85th Evacuation Hospital to Japan
* it is important to remember that he was suffering from severe concussion, hearing loss, and headaches
* given he was suffering from concussion which is now called traumatic brain injury (TBI), it is understandable that he does not clearly remember the information 
* he was allowed enlistment with low average intelligence score of 27 which is associated with Project 100,0000 and may be significant for some of the confusion, memory loss, or it may be just due to concussion 
* his service-connection reflects head trauma, blackouts, loss of consciousness, constant ringing of the ears, hearing loss, and migraine headaches
* his Department of Veterans Affairs (VA) clinical documentation PTSD treatment clearly reflects his reporting of the 20 February 1968 event 
* his VA records also reflect lack of smell and taste, which are symptoms of brain concussion 

3.  The applicant provides the following previously submitted/previously considered (PS/PC) documents and new documents/evidence (NE):

* Previous Record of Proceedings (PC)
* DA Form 1594 (Daily Staff Journal or Duty Officer's Log) (PS/PC)
* Special Orders (SO) Number 140, dated 19 May 1968  (PC)
* SO Number 120, dated 19 June 1968 (PC)
* SO Number 127, dated 28 June 1868 (PC)
* DA Form 1811 (Physical and Mental Status on Release from Active Service), dated 9 September 1970 (PC)
* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), ending on 22 September 1967 and 22 September 1970 (PC)
* DA Form 20 (Enlisted Qualification Record) (PC)
* SO Number 141, dated 13 July 1970 (PC)
* DA Form 2658 (Health Record-Abstract of Service) (PC)
* DA Form 64 (Serviceman's Statement Concerning Application for Compensation from the VA) (PC)
* DD Form 4 (Enlistment Contract) (PC)
* DA Form 47 (Induction Record) (PC)
* Document titled "Project 100,000" (NE)
* Patient Inquiry, dated 7 Mach 2014 (NE)
* Standard Form (SF) 600 (Chronological Record of Medical care), dated February-April 1968 (NE)
* SF 502 (Narrative Summary), dated 19-22 April and 16 May 1968 (NE)
* DA Form 8-275-2 (Clinical Record Cover Sheet), dated 11 June 1968 (NE)
* SF 600, dated July-August 1968 (NE)
* SF 513 (Consultation Sheet), dated 11 September and 18 November 1968 (NE)
* DA Form 8-274 (Medical Condition-Physical Profile Record), dated 16 July 1969 (NE)
* DA Forms 3349 (Medical Condition-Physical Profile), dated 22  August and 1 December 1969 (NE)
* VA Form 10-9034a (Medical Record Report), dated 10 June 1992 (NE)
* VA rating Decision, dated 12 September 1988 (NE)
* SF 513, dated 9 November 1988 and 18 February 1976 (NE)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120017318 on 23 April 2013.

2.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15a governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the original decision and it has not previously been reconsidered.  Such requests must provide new evidence or argument that was not considered at the time of the ABCMR's prior consideration:

	a.  The applicant's first submission was adjudicated by the Board and denied on 23 April 2013.  His request for reconsideration was dated/prepared on 15 April 2014 and signed by a Readjustment Counseling Service counselor, and received by the Case Management Division on 1 October 2014 (which was not within 1 year of the Board's decision). 

	b.  An official at the Case Management Division advised him of the discrepancies.  He signed the application and re-sent it on 19 November 2014 with the new evidence/documents marked "NE" above.  In view of the confusion with the dates and representation/signature by the Readjustment Counseling Service official, and in light of his new evidence, his request warrants consideration by the Board. 

3.  The applicant's records show he enlisted in the Regular Army on 1 March 1966.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 36C (Lineman). 

4.  He served in Germany from on or about 29 July 1966 to on or about 9 October 1967.  He was assigned in MOS 13A (Cannoneer) to Battery C, 2nd Howitzer Battalion, 34th Artillery Regiment.

5.  He was honorably discharged on 22 September 1967 for the purpose of immediate reenlistment in the RA.  His DD Form 214 for this period of service shows his MOS was 13A (Field Artillery Basic) and that he completed 1 year, 6 months, and 22 days of total active service. 

6.  He reenlisted in the RA on 23 September 1967.  He subsequently served in Vietnam from on or about 27 November 1967 to on or about 19 April 1968.  He was assigned to B Battery, 3rd Battalion, 18th Artillery Regiment.

7.  On 16 May 1968, he was transferred to the Military Holding Detachment, 249th General, Hospital, Japan, in a patient status, by authority of SO Number 140, issued by Headquarters, U.S. Army Vietnam, on 19 May 1968. 

8.  On 11 June 1968, he was transferred in a patient status to Camp Zama, Japan.  Additionally, on 19 June 1968, Headquarters, U.S. Army Personnel Center, Far East, published SO Number 120, withdrawing MOS 13A from the applicant. 

9.  On 28 June 1968, Headquarters, U.S. Army Personnel Center, Far East, published SO Number 127, reassigning him to Headquarters Company, U.S. Army Garrison, Fort Meade, MD, on or about 8 July 1968.

10.  He departed Camp Zama on or around 2 July 1968 en route to Fort Meade, MD.  He served with various units and in numerous duty specialties at Fort Meade until his separation.  

11.  On 9 September 1970, a DA Form 1811 was completed by Headquarters, Fort Meade.  It states "Your physical condition on 22 September 1970 is such that you are considered physically qualified for separation or for reenlistment without pre-examination, provided you reenlist within 3 months and state that you have not acquired new diseases or injuries during the interval period when not a member of the military service.” 

12.  Also on 9 September 1970, the applicant completed a DA Form 664 indicating he had decided not to file an application for compensation from the VA at that time and that he might do so at a later date. 

13.  He was honorably released from active duty in the rank/grade of specialist four/E-4 on 22 September 1970 and he was transferred to the U.S. Army Reserve Control group to complete his remaining service obligation.  His DD Form 214 for this period of service shows he was awarded or authorized: 

* National Defense Service Medal
* Vietnam Service Medal
* Vietnam Campaign Medal
* Good Conduct Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar. 

14.  Nothing in several typical documents show he was injured or wounded as a result of hostile action or that he was awarded the Purple Heart:

	a.  Item 40 (Wounds) of his DA Form 20 does not show a combat wound or injury.  

	b.  His name is not shown on the Vietnam casualty roster.

	c.  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 any orders for the Purple Heart pertaining to him.
	
   d.  His records do not contain a Western Union Telegram informing his next of kin of an injury or wound or any Army Adjutant General correspondence regarding an injury.

15.  The applicant provides the following documents: 

	a.  DA Form 1594, dated 20 February 1968, pertaining to the 3rd Battalion, 18th Artillery, in Chu Lai, Vietnam.  This staff journal/officer duty log shows an entry was made at 1509 hours and states "one of B/18 [B Battery, 18th Artillery] truck struck a mine en route to Landing  Zone (LZ)  Ross; Driver medivac to Chu Lai."

	b.  A document titled "Project 100,000."  This was a study that found a strong relationship between Armed Forces Qualification Testing (AFQT) and enlistment eligibility.  The higher the AFQT, the less likely an individual enlisted, and the lower the AFQT, the more susceptible an individual was to developing PTSD. 

16.  The applicant's service medical records are not available for review with this case.  However, he submitted multiple medical documents as follows: 

	a.  SF 600, dated February-April 1968.  On 14 February 1968, at the 3/18th Artillery aid station, he complained of headaches, chest pain, and weakness; he suffered from combat exhaustion and on 16 February 1968, he was still complaining of pain in the right ear and [illegible words].  On 19 April 1968, at the 85th Evacuation Hospital, he appears to have been diagnosed with bilateral serous otitis media and was told to avoid loud noises. 

	b.  SF 502 (Narrative Summary), dated 19 April 1968, that shows he was admitted on 19 April and released on 21 April at the Cam Ranh Bay dispensary.  His diagnosis was that of bilateral serous otitis. 

	c.  SF 502 (Narrative Summary), dated 14 May 1968 that shows he was admitted to the 6th Convalescent Center, Vietnam on 22 April and discharged on 14 May 1968.  His chief complaint was hearing loss since entering the artillery unit 2 years earlier.  He was transferred to the 6th Convalescent Center from the 85th Evacuation Hospital where a diagnosis of bilateral serous otitis media was made and therapy started.  His disposition was evacuation to Japan for reevaluation and probable MOS change. 

	d.  SF 502 (Narrative Summary), dated 24 May 1968 that shows he was admitted to the 6th Convalescent Center on 16 May 1968 with a chief compliant of hearing loss.  He had been in the artillery for 2 years and had noticed gradual decreased hearing and increased tinnitus during this period.  He was exposed to severe acoustic trauma in February 1968.  Since this time, his hearing has increased.  His diagnosis was that of "Hypacusis, bilateral, high frequency, severe, secondary to acoustic trauma" and his disposition was a release to duty with a profile for hearing. 

	e.  DA Form 8-275-2 (profile), dated 11 June 1968, with a diagnosis of "otitis, serous, bilateral" and "Hypacusis, bilateral, high frequency, severe, secondary to acoustic trauma, and his disposition was "duty with permanent assignment limitations due to the second diagnosis. 

	f.  SF 600, dated July-August  1968.  On 1 August 1968, he was seen at Kimbrough Army Hospital, Fort Meade, for syncope episode, preceded by ringing which gets much worse; and on 28 August 1968, he was seen again with a complaint of ringing in his ears, headaches, and burning in his ear.  
	g.  SF 513 (Consultation Sheet), dated 24 September 1968.  He was evaluated at Audiology with a diagnosis of "Hypacusis: bilateral, mild, sensor neural type."  He met the requirements to be retained in the Army from a hearing standpoint without a hearing aid.  He was issued a profile with limitations. 

	h.  SF 513 (Consultation Sheet), dated 21 November 1968.  It shows he was seen at Neurology for possible seizure disorder.  He had had two episodes of 3 to 4 minutes of light headed feeling followed on the first occasion by syncope of unknown duration with no convulsive movements seen.  The second time happened when he was on details.  He stated that he ran a stick into his eye.  There was no loss of consciousness.  He suffered bilateral hearing loss following his time in Vietnam when a truck in front of him blew up.  He has had occasional tinnitus since then. 

	i.  DA Form 8-274, dated 16 July 1969.  He was issued a permanent profile for severe hearing loss, dizziness, ringing in ears, with associated frequent severe headaches.

	j.  Two DA Forms 3349, dated 23 August 1969 and 1 December 1969.  He was issued physical profiles for frequent loss of consciousness.  On 9 August 1967, his condition improved.

	k.  VA Form 10-9034a, dated 10 June 1992.  During a VA exam following a visit to evaluate his dizziness and headaches, he stated that in Vietnam, a truck blew up in front of him and at the time he bled from his nose and ears.  Since that time, he had problems with his hearing and balance.  He stayed in the hospital for a couple of months and somehow gradually improved. 

	l.  VA rating decision, dated 16 December 1988, assigning him service-connection for bilateral high frequency hearing loss, tinnitus, and residuals of syncope (claimed as a concussion). 

	m.  SF 513 (Consultation Sheet), dated 9 November 1988, that shows the entry "status post-acoustic trauma in Vietnam., explosion/artillery." 

	n.  SF 513 (Consultation Sheet), dated 18 February 1976, that shows the entry "in 1968, patient was in loss for hearing in truck explosion in Vietnam.  Since that time has noted crickets in ears and trouble hearing." 

	o.  Patient Inquiry, dated 7 March 2014.  This document lists his rated disabilities as "eczema, tinnitus, impaired hearing, migraine headaches, and PTSD." 

17.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained while in action against and 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.

	a.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:  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 released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy generated explosions.

	b.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows:  frostbite or trench foot injuries; heat stroke; food poisoning not caused by enemy agents; chemical, biological, or nuclear agents not released by the enemy; battle fatigue; disease not directly caused by enemy agents; accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; self-inflicted wounds, except when in the heat of battle and not involving gross negligence; post-traumatic stress disorders; and/or jump injuries not caused by enemy action.

18.  On 29 April 2011, the Army published Military Personnel Message 11-125     (or Army Directive 2011-07) clarifying existing standards for awarding of the Purple Heart.  It does not change the standards for its award or alter Army Regulation 600-8-22 but clarified how Soldiers who've suffered concussive injuries as the result of enemy action might be eligible for the Purple Heart.  While Army regulations have for some time specified that enemy-generated concussions justify awarding of a Purple Heart, what had been left unclear was the definition of concussion -- which is also known as mild TBI.
	
   a.  Included in the additional guidance are examples of signs, symptoms or medical conditions documented by a medical officer or medical professional that meet the standard for awarding of the Purple Heart.  Examples of such signs and symptoms include:

* diagnosis of concussion or mild traumatic brain injury
* any period of memory loss or a decreased level of consciousness
* any loss of memory for events immediately before or after the injury
* neurological deficits, including weakness, loss of balance, change in vision, headaches, nausea, difficulty with understanding or expressing words, sensitivity to light, or difficulty with coordinating movements
* intracranial lesions

	b.  Also included in the guidance are examples of medical treatment for concussion that meet the standard of treatment necessary for awarding of the Purple Heart.  Examples of treatment include:

* limitation of duty following the incident
* pain medication such as acetaminophen, aspirin, ibuprofen, etc. to treat injury, such as headache
* referral to neurologist or neuropsychologist to treat the injury
* rehabilitation, such as occupational therapy, physical therapy, to treat injury

	c.  The guidance says Soldiers who suffer mild TBI or concussive injuries may qualify for a Purple Heart when both diagnostic and treatment factors are present and documented in a Soldier's medical record by a medical officer.  The guidance also clarifies both the terms "medical officer" and "medical professional."  The new clarifying directive is retroactive to 11 September 2001.  

DISCUSSION AND CONCLUSIONS:

The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not the sole justification for award.

	a.  The applicant's medical record shows he was treated for a hearing loss that appears to have been started upon becoming an artilleryman as evidenced by multiple documents indicating he began experiencing hearing loss since joining the artillery 2 years earlier.  There isn't a single document that shows he was injured as a direct result of enemy action.  There is no indication anywhere in his records or in the documents he provides that this injury was caused by enemy action. 

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

	c.  The applicant's name is not shown on the Vietnam casualty roster; his DA Form 20 does not document any combat wounds; his record is void of any orders that show he was awarded the Purple Heart; and there is no evidence in his service personnel records that shows he was wounded or injured as a result of hostile action or treated for such wounds.

	d.  Soldiers who suffer mild TBI or concussive injuries may qualify for a Purple Heart when both diagnostic and treatment factors are present and documented in a Soldier's medical record by a medical officer.  This new clarifying guidance is retroactive to 11 September 2001.

	e.  Notwithstanding his sincerity, in the absence of additional documentation that conclusively shows he was wounded or injured as a result of hostile action and treated for those wounds, the applicant does not meet the criteria for award of the Purple Heart.

	f.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by him in service to our Nation.  He and all Americans should be justifiably proud of his service in arms.

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 to amend the decision of the ABCMR set forth in Docket Number AR20120017318 on 23 April 2013.


      ___________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)                                         AR20150004142



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150004142



10


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1