IN THE CASE OF: BOARD DATE: 28 July 2016 DOCKET NUMBER: AR20150012179 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: 28 July 2016 DOCKET NUMBER: AR20150012179 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 as a basis for correction of the records of the individual concerned. 2. Nevertheless, this action in no way diminishes the sacrifices made by the applicant in service to our Nation. The applicant and all Americans should be justifiably proud of his service in arms. _____________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: 28 July 2016 DOCKET NUMBER: AR20150012179 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 award of the Purple Heart. 2. The applicant states: a. He was wounded [in Vietnam] on the night of 1 February 1968 while on guard duty that started the evening of 31 January 1968; it was the start of the Vietnamese New Year. There is no mention in his records of this fact due to his decision that because too many wounded were being taken care of at their small dispensary he decided to care for what he considered a small wound on his own. However, he thought that his noncommissioned officer in charge would have mentioned something in his 201 file but he did not. b. He has worked on this case for over 46 years and he deserves it. He has suffered over 40 years with many local Department of Veterans Affairs (VA) denials. Therefore, he did not receive any medical treatment, lost out on plenty of jobs, lost out on family gatherings, and lost friends. He is providing a Board of Veterans' Appeals form that supports his request. 3. The applicant provides his Board of Veterans' Appeals decision. 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 8 July 1966 and he held military occupational specialty 71H (Personnel Specialist). 3. He served in Vietnam as follows from: * 22 November 1967 to 25 October 1968 while assigned to Headquarters and Service Company (HSC), U.S. Army Pacific * 2 March 1969 to 1 March 1970 while assigned to Headquarters and Headquarters Service Company (HHSC), 509th Radio Research Group 4. He was honorably released from active duty on 1 March 1970 and he was transferred to the U.S. Army Reserve. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued does not show the Purple Heart. 5. Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) is blank and a review of the Vietnam casualty listing failed to show his name as a casualty. 6. There is no medical evidence in his available record that shows he was wounded as a result of hostile action while in an active duty status. 7. The applicant provides his Board of Veterans' Appeals decision, dated 2 March 2015, wherein it shows his appeal for entitlement to VA disability for service-connected traumatic brain injury (TBI) with headaches and light sensitivity was granted. The decision stated, in part: a. The applicant sought service-connection for TBI with headaches and light sensitivity and argued this disability was the result of being knocked unconscious during a mortar attack in Vietnam. The mortar hit approximately 20 feet from his position, caused him to be thrown back, and he hit his head on a wall of sandbags. He did not seek medical treatment and his only outward sign of injury was a small cut above his left eye. The board concluded that his TBI with headaches and light sensitivity was incurred in active service. b. In October 2011, the applicant was afforded a VA examination and the examiner reported the applicant was diagnosed with TBI in June 2008. He stated he came under a rocket attack during the Tet Offensive in 1968 and hit his head on bunker sandbags after a blast which caused him to lose consciousness. The VA examiner indicated the applicant was exposed to more than three blasts and that one blast was severe enough to cause him injury. It was noted the applicant was taking medication for his TBI. The VA examiner opined that his TBI was less likely as not caused by or as a result of the TBI he sustained during military service. c. While the board conceded the applicant did not seek treatment for a head injury while in the service, the board found his statements competent and credible regarding the head injury he sustained during a mortar attack. REFERENCES: Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained while in action against an 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 records. DISCUSSION: 1. The criteria for award of the Purple Heart requires the submission of substantiating evidence to verify a Soldier received a wound/injury as a result of hostile action, the wound/injury required treatment by medical personnel, and the medical treatment must have been made a matter of official record. 2. Notwithstanding the applicant’s sincerity, his records are void of any evidence and he did not provide any evidence that shows he was wounded or injured as a result of hostile action and treated for any such wound/injury. 3. His name is not listed on the Vietnam casualty roster and his DA Form 20 does not indicate he received a combat-related wound. Although he may have been awarded VA disability for service-connected TBI, there is no conclusive evidence that shows his TBI was incurred as the direct result of enemy action. In the absence of conclusive evidence that shows he was wounded as a result of hostile action and treated for those wounds, he does not meet the criteria for 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) AR20150012179 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012179 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2