IN THE CASE OF: BOARD DATE: 27 October 2016 DOCKET NUMBER: AR20150013601 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 27 October 2016 DOCKET NUMBER: AR20150013601 BOARD DETERMINATION/RECOMMENDATION: 1. The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient to warrant amendment of the ABCMR's decision in Docket Number AC90-10063, dated 15 April 1992, for correction of the records of the individual concerned. 2. The Board further determined the evidence presented is insufficient to warrant the requested relief for new issues. As a result, the Board recommends denial of so much of the application that pertains to the amendment of his discharge date, the removal of a DA Form 3082-R (Statement of Medical Condition) belonging to another Soldier, and the deletion of a 22 April 1969 behavioral health entry in his military medical records. ___________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. IN THE CASE OF: BOARD DATE: 27 October 2016 DOCKET NUMBER: AR20150013601 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 the award of the Purple Heart for wounds incurred while in Vietnam. As new issues, he adds the following requests: * to personally appear before the Board * in effect, change the military service number (MSN) listed on his DD Form 214 (Report of Separation from Active Duty) from RA 64XXXXXX to RA 67XXXXXX * amend the discharge date listed on his DD Form 214 * in effect, remove from his records a DA Form 3082-R (Statement of Medical Condition) belonging to another Soldier (Private First Class (PFC) JRS) * in effect, delete a behavioral health entry, dated 22 April 1969, from his medical records wherein he was alleged to have said "nerves has been a continual problem with him for a greater part of his life" 2. The applicant states, in effect: a. He requests the Board review his military medical records and, based on that review, issue him a Purple Heart. (1) On 1 June 1969, he took a plane called a Flying Tiger from Fort Dix, NJ to Vietnam; he thinks he arrived hours later. On arrival, he was told to brush his teeth with fluoride, and then was issued new clothing and an M-16 rifle. He was sent to his unit via C130 aircraft and helicopter. (2) His first injuries were sustained on his third day there. He incurred head and body injuries while in combat on an unspecified date in June 1969. In an effort to determine the date of injury, he noted his unit showed he arrived on 6 June 1969. This suggested either his plane took 5 days, or they failed to properly log him in due to unit problems, and the fact his records were not there. (3) Around this same time he was being treated for jungle rot on his right foot and leg; the lesions associated with this disease never healed. To this day, he still suffers from a skin problem resulting from an unknown gas used by the enemy. The enemy's use of gas was reported in the radio log for the 1st Battalion, 12th Infantry (his unit while in Vietnam). b. His injuries were well-documented in the field, but these documents did not reach his unit until mid-July 1969. By that time, most of his treatment records were missing. (1) His separation physical showed he had scars that he asserts were from the above-cited combat injuries. He obtained portions of his military medical records from the Department of Veterans Affairs (VA) that show physical evaluations on 19 July 1969 [sic, 1968], 10 February 1969, as well as his separation physical in September 1969. (2) He asserts his records mistakenly contained a DA Form 3082-R belonging to another Soldier (PFC JRS). He also states there was a 22 April 1969 comment attributed to him in his medical records wherein he was alleged to have said that "nerves had been a continual problem with him for a great part of his life." He contends he never made this statement, and never had a "nerve condition" before entering the Army. 3. The applicant provides: * letter, from the Army Review Boards Agency (ARBA), dated 31 January 2012 * three DD Forms 215 (Correction of DD Form 214, Certificate of Release or Discharge from Active Duty), dated 17 October 1990, 21 May 1992, and 29 January 1996, respectively * VA Rating Decision, dated 3 June 1981 * three Standard Forms (SF) 88 (Report of Medical Examination), dated 19 July 1968, 10 February 1969, and 4 September 1969, respectively * DA Form 3082-R, dated 25 August 1969 * two SF Form 513 (Consultation Sheet), dated 19 July - 21 July 1969 * letter, from the applicant's former spouse, dated 21 July 2011 * six photographs * Special Orders (SO) Number 124, dated 7 May 1969 * extract from DA Form 20 (Enlisted Qualification Record) * two pages of an untitled/unidentified and undated document, apparently containing entries reflecting unit combat activity (e.g. DA Form 1594 (Daily Staff Duty Journal or Duty Officer's Log) * one page extract from military medical records with entries dated 1 May 1969, and 4 July 1969 through 26 July 1969 * apparent transcription of an email, dated 9 August 2015 * letter, dated 24 November 2015, from the applicant, addressed to the Secretary of the Army 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 AC90-10063 on 15 April 1992. 2. In multiple applications, submitted between 1988 and 1990, the applicant petitioned the Board for the award of the Purple Heart. The Board denied his request in ABCMR Docket Number AC90-10063. a. Starting in March 2009, he requested reconsideration of his request for the Purple Heart, and has since submitted additional requests. The Board returned all of these requests without action because they were submitted beyond the 1-year time limit prescribed in AR 15-185 (ABCMR). b. The current request offers new evidence, in the form of an apparent staff duty log and his separation physical, both of which were not previously considered. On this basis, the applicant's current request warrants consideration by the Board. 3. The applicant requests correction of his DD Form 214 by amending the MSN from RA 64XXXXXX to RA 67XXXXXX. His records show this correction was already made on a DD Form 215, dated 21 May 1992. As such, this issue will not be further addressed in this Record of Proceedings. 4. The applicant enlisted in the Regular Army on 2 August 1968. Following initial training, he was awarded military occupational specialty 11B (Light Weapons Infantryman), and sent to Vietnam. 5. His available service record contains the following: a. DA Form 20: * item 31 (Foreign Service) - Vietnam, from on or about 6 June 1969 to on or about 12 September 1969 * item 38 (Record of Assignments) - from on or about 21 June 1969, assigned to Company D, 1st Battalion, 12th Infantry Regiment, 4th Infantry Division; he departed Vietnam on or about 12 September 1969 * item 40 (Wounds) - blank b. His available service records do not contain an official Army message or a Western Union telegram notifying his next of kin of an injury or wound sustained in combat. This was the notification procedure used at the time for reporting casualty information. Additionally, his records contain no general orders showing the award of a Purple Heart. c. Memorandum, dated 13 September 1969, prepared by Headquarters, U.S. Army Personnel Center, Oakland, CA, and signed by both the applicant and a Second Lieutenant LEM. The form advised the applicant that he could petition the Army Discharge Review Board (ADRB) for an upgrade of his discharge. d. SO Number 256, dated 13 September 1969, issued by Headquarters, U.S. Army Personnel Center, shows the applicant was provided a DD Form 214. The effective date of change of strength accountability (EDCSA) is 13 September 1969. e. DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), showing a discharge date of 13 September 1969. He was separated in Oakland, CA. On 24 January 1979, the ADRB directed this form be voided and replaced with a DD Form 214 (Report of Separation from Active Duty). f. The applicant's previous nine petitions to the ABCMR and ADRB all affirm his discharge date as 13 September 1969. g. The Memorandum of Consideration for ABCMR Docket Number AC90-10063 shows his discharge date as 13 September 1969. h. DD Form 256A (Honorable Discharge Certificate), signed by Brigadier General RSY, shows the applicant was honorably discharged on 13 September 1969. i. No DA Form 3082-R, belonging to another Soldier (PFC JRS), was found in his available service record. j. SF Form 600 (Chronological Record of Medical Care) showing an entry dated 22 April 1969, that essentially states: * [applicant] seems to be suffering from chronic anxiety due to his holdover status * [applicant] states that nerves have been a continual problem with him for a greater portion of his life * present status (holdover) is causing [illegible] since 6. The Vietnam Casualty Report is a listing of Vietnam-era casualties commonly used to verify entitlement to award of the Purple Heart. The applicant's name does not appear on this roster. 7. A review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS) database, that contains an index of general orders issued during the Vietnam-era between 1965 and 1973, and maintained by the U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant. 8. The applicant provides: a. Two pages of an untitled/unidentified and undated document, apparently containing entries reflecting unit combat activity (e.g. DA Form 1594 (Daily Staff Duty Journal or Duty Officer's Log). None of the entries specifically identify the applicant by name. The applicant has highlighted certain entries: * 1232 - request more medics; Delta Company requests more medics from battalion * 1305 - reports gas; Delta Company reports to the battalion TOC (tactical operations center) the use of an unidentified gas (presumably by the enemy) * 1320 - want a dust off [medical evacuation] on station - have approximately 15 WIA (wounded-in-action) C-2 * Delta Company reiterates the need for a medevac (medical evacuation) * requests a dust-off be put on station as they have about 15 WIA, code 2, they need help out immediately b. A page from the applicant's medical records showing one entry dated 1 May 1969 (Fort Gordon, GA); and the three remaining, dated 4 July 1969, 19 July 1969, and 26 July 1969, were apparently made in Vietnam. * 1 May 1969 - returns with same complaint as before; less marked; dispensed medications; MHC (mental health clinic) follow-up * 4 July 1969 - MHCS, given Thorazine (a drug used to treat mental illness and help reduce anxiety) * 19 July 1969 - entry not clear, but appears to say to change dressing on leg * 26 July 1969 - MHCS - seen 40 days (illegible entries), no meds given at this time c. Letter, dated 21 July 2011, from the applicant's former spouse in which she essentially confirmed she received a notification from the American Red Cross that her husband at the time (the applicant) was missing in action, and possibly dead. She was to report to Fort Hamilton, NY, after which she was sent to Fort Dix. While at Fort Dix, she learned the applicant had been located and that he had been injured in battle. d. Document that apparently transcribes an email message, dated 9 August 2015, from a person who appears to have been a medic in the applicant's unit. It describes the procedures used at the time for managing wounded Soldiers, and the completion medical documentation in the field during combat. e. SF 513, reflecting dates of request as 19 July to 22 July 1969. It states the applicant had a 3-week history of a raised linear pruritic area (describing itching due to a skin condition) on the right leg. f. Three Standard Forms 88 (Report of Medical Examination), dated 19 July 1968, 10 February 1968, and 4 September 1969, respectively. Of the three forms, only the last, from the applicant's separation physical, contains an entry showing multiple small scars on the head, abdomen, and left knee. The entry does not provide details as to how these scars were incurred. REFERENCES: 1. Army Regulation (AR) 600-8-22 (Military Awards) provides the Purple Heart is awarded for a wound or injury sustained as a result of hostile action. Substantiating evidence must be provided to verify that the wound or injury was the result of hostile action, the wound or injury must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record. a. A wound is defined as any injury to any part of the body from an outside force or agent. A physical lesion is not required. However, the wound for which the award is made must have needed treatment, not merely examination by a medical officer or physician. Additionally, treatment of the wound will be documented in the Service member's medical or health record. b. Examples of enemy-related injuries that clearly justify award of the Purple Heart include injury by an enemy bullet or shrapnel, enemy-placed trap or mine, and injuries caused by enemy-generated explosions or enemy-released chemical or biological agents. 2. AR 600-200 (Enlisted Personnel Management System), chapter 9 (Enlisted Qualification Record), in effect at the time, stated item 40 would show a brief description of wounds or injuries (including an injury from gas) that required medical treatment, and received through hostile or enemy action. This included those requiring hospitalization. The entry would also reflect the date the wound or injury was incurred. 3. AR 680-8 (EDCSA), in effect at the time, established the method of personnel accountability, defined EDCSA, and outlined how EDCSA was used. With regard to losses, it stated the decrease in overall strength of the Active Army would be effective on the EDCSA. The EDCSA date for a discharge was the date of separation for the individual Soldier. 4. AR 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed policies and procedures for the completion of the DD Form 214. Regarding the section titled "Transfer or Discharge Data," item 11d (Effective Date), this entry should show the date separation is accomplished. 5. AR 15-185 (ABCMR) prescribes policies and procedures for the ABCMR. It states, in pertinent part, the ABCMR considers individual applications that are properly brought before it. The ABCMR may, in its discretion, hold a hearing or request additional supporting documentation or opinions. It states further, in paragraph 2-11, that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. By regulation an applicant is not entitled to a hearing before the Board. The Director of the ABCMR, or a panel of the Board, can authorize a personal appearance. In this case, the evidence of record is sufficient to render a fair and equitable decision at this time. 2. To fulfill the first criterion for the award of the Purple Heart, a wound or injury must have been incurred. The second criterion stipulates there must be evidence the wound or injury resulted from hostile action. On these two points, neither the record, nor the evidence offered by the applicant offer sufficient proof. a. The evidence of record does suggest something happened. Physical examinations from July 1968 and February 1969 show no entries with regard to scarring, while his separation physical, dated 4 September 1969, indicates multiple small scars on the head, abdomen, and left knee. The entry does not, however, provide details as to how these scars were sustained. b. Typical resources used for validating eligibility for the Purple Heart are void of any information relating to the applicant. The Vietnam Casualty Roster, the ADCARS database, and the applicant's DA Form 20, contain no references to wounds or injuries. Primary sources, such as official reports made at the time, or medical treatment reports specifying the source and nature of the wound(s) or injury(ies), are missing from the applicant's available records. c. In support of his request for the Purple Heart, the applicant provides an apparent staff duty log and his separation physical. These documents, while informative, do not clearly and compellingly confirm the applicant was wounded, and that those wounds resulted from hostile action. 3. It is evident the applicant served in combat, as affirmed by the award of the Combat Infantryman Badge. It is also apparent the applicant sustained some type of injuries. There is, unfortunately, an absence of the validating documentation necessary to confirm his eligibility for the award of the Purple Heart. Based on the foregoing, the applicant does not appear eligible. 4. With regard to amending his date of discharge, the preponderance of the evidence indicates 13 September 1969 is the correct date. * his DA Form 20 shows him leaving Vietnam on or about 12 September 1969; it also lists his tour in Vietnam being between on or about 6 June 1969 to on or about 12 September 1969 * Memorandum, dated 13 September 1969, prepared by Headquarters, U.S. Army Personnel Center and signed by both the applicant and a Second Lieutenant LEM, confirms he was in Oakland, CA that date * SO Number 256, dated 13 September 1969, issued by Headquarters, U.S. Army Personnel Center shows his EDCSA date is 13 September 1969; by regulation the EDCSA date equals the separation date * his DD Forms 214 state his discharge date as 13 September 1969, and that he was separated in Oakland, CA * documents associated with his applications to the ABCMR and ADRB all show his discharge date as 13 September 1969 5. As to the removal of a DA Form 3082-R belonging to another Soldier (PFC JRS), while it may have been in his available service record at some point in the past, it apparently was already removed. A review of his available service record confirmed this document was not there. As such, no correction appears to be required. 6. The applicant requests, in effect, the removal of an entry in his medical records, dated 22 April 1969, wherein he was alleged to have told his physician, "nerves have been a continual problem with him for a greater part of his life." a. The Army has an interest in maintaining the integrity of its records for historical purposes. The information contained in those records should reflect the conditions and circumstances that existed at the time the records were created. b. In the absence of a showing of material error or injustice, there is a reluctance to recommend that an entries in the applicant's medical records be removed. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013601 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013601 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2