MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:         6 January 1999          
	DOCKET NUMBER:   AC98-08617
				    AR1998013406

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas D. Howard, Jr.		Chairperson	
	Mr. Luther L. Santiful		Member	
	Mr. Curtis W. Barbee		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, award of three Purple Hearts and that his medical records be changed to indicate that his current eye problems stem from a convoy accident on 10 April 1966.

APPLICANT STATES:  When the convoy he was riding in hit a mine a “small fragments from the truck exploded near [his] face and eyes with some foreign objects going in the eye.”  He also notes that he sustained a shrapnel injury to his side during a mortar attack on 4 October 1966 and that on 25 August 1966 his ears were injured when an enemy grenade hit the personnel carrier he was in.  In support of his request he submits extracts from his service medical records.  (Note: The Board considered the applicant’s request on 30 December 1998 and, although they voted to deny relief, the Board, by majority vote, determined that the applicant’s failure to file within the statutory time limits should be excused.  Hence the applicant’s case has been reconstituted to excuse his failure to timely file.)

EVIDENCE OF RECORD:  The applicant's military records show:

He entered active duty on 24 September 1964 and was assigned to Vietnam as a medical specialist in May 1966.  His service medical records note he received treatment for a fragment wound to his right side (frag. RT. Lower side) on 
4 October 1966.  There is no indication, however, that the wound was the result of hostile action or that any enemy action was involved in the injury.  He was returned to duty.

The applicant’s service medical records note medical personnel saw him on several occasions for eye problems during his enlistment.  However, his entrance physical examination notes he entered the military with eye problems that were determined not to be medically disqualifying.

The applicant was awarded a Bronze Star Medal with “V” device for his actions on 25 August 1966, however, the award citation makes no mention that the individual was wounded during the action, nor is there any evidence of treatment for ear problems as a result of that action.

In April 1967 the applicant departed Vietnam and completed his enlistment contract at Fort Benning, Georgia.  His separation physical examination makes no mention of any wounds sustained as a result of hostile action.

On 22 September 1967 the applicant was released from active duty.  Neither his DD Form 214 nor his DA Form 20 (enlisted qualification record) reflect entitlement to the Purple Heart and item 40 (wounds) on his DA Form 20 is blank.  The applicant authenticated his DA Form 20 on 16 August 1967 and his DD Form 214 on the date of separation.

Subsequent to his separation, in December 1967, the applicant submitted an initial claim for disability to the VA.  He makes no mention of any wounds sustained as a result of hostile action in that claim.

Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for wounds 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 a medical officer, and the medical treatment must have been made a matter of official record.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  There is no indication, nor has the applicant provided any, which supports his statement that he sustained any injuries to his eyes as a result of hostile action.

2.  While the applicant contends that he sustained ear damage during the 25 August 1966 action for which he received the Purple Heart he provides no evidence of any medical treatment following the action and his award of the Bronze Star Medal with “V” device does not mention the applicant was wounded.

3.  The applicant provides no evidence to support his contention that the “frag” wound treated on 4 October 1966 resulted from hostile action.  The Board notes that use of the term “wound” in medical records does not, in and of itself, mean that enemy action was involved.

4.  The applicant was a medical specialist who was, or should have been, clearly familiar with the regulatory requirements for award of the Purple Heart.  The Board notes that in spite of the applicant’s medical duties, he remained on active duty for five months following his departure from Vietnam and for more than a year after the dates he claims to have been wounded, and yet fails to satisfactorily explain why he never raised the issue of his entitlement to the Purple Heart until nearly 30 years after his separation from active duty.  There is no evidence the applicant was ever awarded, or met requirements, for award of the Purple Heart.

5.  It is not the policy of the Board to create or alter service medical records.  Such records merely reflect the observations and opinions of medical examiners at the time they were recorded.  Subsequent interpretations of these records fall within the jurisdiction of the agency administering benefits based on the facts recorded. The decision to grant such benefits is a matter strictly within the authority of that particular agency.  Medical records made and kept by the Department of the Army are merely prima facie evidence of the existence of the fact or facts recorded.  These facts are subject to further proof or disproof by certain evidence which the VA is authorized to determine as having a higher evidential value for their determination of the facts relating to the physical conditions of a claimant at any given time.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  __cwb___  GRANT

________  ________  ________  GRANT FORMAL HEARING

__tdh___  ___lls_____  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998013406	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990106	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.107.00		
2.142.00		
3.		
4.		
5.		
6.