IN THE CASE OF: BOARD DATE: 19 April 2016 DOCKET NUMBER: AR20150009505 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: 19 April 2016 DOCKET NUMBER: AR20150009505 BOARD DETERMINATION/RECOMMENDATION: 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 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. IN THE CASE OF: BOARD DATE: 19 April 2016 DOCKET NUMBER: AR20150009505 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 records to show award of the Purple Heart. 2. The applicant states: a. He would like his medical records, personnel records, DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and any other pertinent records updated and corrected to reflect he was wounded while engaged in combat with the enemy in Vietnam on 28 April 1969. b. He has provided medical records documenting over time independent diagnoses from many different Department of Veterans Affairs (VA) hospitals and doctors writing clearly that he has shrapnel wounds in his left lower leg which caused peripheral neuropathy or partial paralyses of the nerves controlling the use of his left foot. c. He provided sworn eyewitness statements from his former company commander and a fellow Soldier stating they witnessed a sergeant first class assisting him with injuries to his left leg. 3. The applicant provides: * DD Form 214 * self-authored letter to his Congressional representative, dated 1 August 2013 * VA medical records * eyewitness statements * photographs and Internet satellite images * letter from a Member of Congress, dated 9 December 2015 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 enlisted in the Regular Army on 15 January 1968 for a period of 3 years. He served as a chemical staff specialist in Vietnam from 22 July 1968 to 20 July 1969. 3. Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) is blank and item 41 (Awards and Decorations) does not show the Purple Heart as an authorized award. 4. On 14 November 1970, he was honorably released from active duty. His DD Form 214 does not show the Purple Heart as an authorized award. 5. There are no orders for the Purple Heart in the applicant's available records. 6. His name is not listed on the Vietnam casualty roster. 7. He provided: a. a VA medical record, dated 31 October 1989, showing he was diagnosed with shrapnel wound to left leg; b. a medical record, dated 1 March 1991, showing by his reported history and by examination to a lesser extent, he had some evidence of disturbance of left leg peroneal nerve secondary to trauma from shell fragments, since the point of stimulation that reproduces his pain and numbness is essentially over the area where a shell fragment hit him just below the left knee; c. an undated VA document showing he was granted service-connection for residuals contusion/laceration of left lower leg with disturbance of left peroneal nerve (10 percent); and d. an undated statement from his former company commander who states the applicant was a member of his company in Vietnam. On 28 April 1969, their company compound was attacked by small arms fire. During this exchange of fire he was notified they had wounded Soldiers. His mess sergeant (a sergeant first class) assisted the applicant with a leg injury. 8. He provided a self-authored letter to his Congressional representative, dated 1 August 2013, wherein he states: a. His wounds were received on Monday, 28 April 1969, at approximately 3:30 p.m. On the day of the incident, he was scheduled for guard duty along with several other men. While running at full speed to respond to an enemy attack, incoming rounds hit the ground throwing up large plumes of dirt, rocks, and bullet fragments, some of which hit his left lower leg causing him to fall. His right forearm hit the ground first, landing on some rocks causing a large deep gash. Next his head and "steel pot" helmet hit the ground. There was severe pain in his right forearm and left leg below the knee. Realizing the severity of the situation, he retrieved his rifle and helmet and began returning fire. Company reinforcements started to arrive several minutes later. b. After this incident, he went back to his bunk and a staff sergeant examined his leg and arm and treated his wounds. The staff sergeant took an account from him of the incident and noted his injuries. That was the last time he heard anything about it. c. In 1989, a doctor took x-rays and performed a bone study and diagnosed him with shrapnel wounds to his left lower leg which possibly damaged or severed a nerve. He was sent to the VA Medical Center and he was diagnosed with a peripheral nerve that had been partially severed (paralyzed) at the wound location. In addition, VA doctors further assessed the nerve damage of his left leg was caused by shrapnel wounds and assigned it a service-connected disability rating. 9. He provided a letter from a fellow Soldier, dated 30 September 2013, which states their company came under enemy attack on 28 April 1969 while working his assigned duties. They were all alerted and they went to their defense positions in perimeter bunkers. He has a good recollection of the attack in which the applicant was wounded and treated by the mess sergeant, but not officially documented as wounded by a non-medical Soldier. He was wounded during another similar attack in June and he doesn't recall having been documented for wounds. He received his Purple Heart while recovering from surgery in the hospital and his Purple Heart was not recorded on his DD Form 214 until 1985. 10. He also provided a second letter from his former company commander, dated 12 December 2013, wherein he states their company did not have any assigned medical personnel to attend any wounded or injured. The applicant left their unit to return to the United States shortly after this attack. His departure prevented their follow-up to his injuries. The applicant was serving in a combat zone and responding to an enemy attack that resulted in him being wounded. These wounds have been more than verified by competent medical authorities since his return to the United States. The applicant has also become partially disabled from these wounds. REFERENCES: 1. Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained in action against an enemy or as a result of hostile action. Substantiating evidence must be provided to verify 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. 2. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, stated a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization, would be entered in item 40 of the DA Form 20. The instructions further stated the date the wound or injury occurred would also be entered in item 40. DISCUSSION: 1. The applicant contends he was wounded while engaged in combat with the enemy in Vietnam on 28 April 1969. 2. His name does not appear on the Vietnam casualty roster and item 40 of his DA Form 20 is blank. 3. There is no evidence of record showing he was wounded as a result of hostile action in Vietnam. 4. Army Regulation 600-8-22 establishes basic requirements for award of the Purple Heart. The Purple Heart requires evidence to verify the wound was the result of hostile action, treatment of the wound by military medical personnel, and documentation of the wound in official records. 5. In the absence of corroborating medical evidence showing he was injured and treated for wounds sustained as a result of hostile action in Vietnam, the supporting statements from fellow Soldiers and the VA documentation prepared nearly 20 years after his military service based on his account of the injury are not sufficient as a basis for awarding him the Purple Heart. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) @#!CASENUMBER 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009505 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2