IN THE CASE OF: BOARD DATE: 28 February 2017 DOCKET NUMBER: AR20160001226 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 February 2017 DOCKET NUMBER: AR20160001226 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: 28 February 2017 DOCKET NUMBER: AR20160001226 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, in effect, he deserves the Purple Heart for the traumatic brain injury (TBI) he received after being injured in an accident involving an armored personnel carrier (APC). He was injured when an APC hit a mine; he was not with his unit at the time but the APC driver was killed. He was treated for blood in his urine. 3. The applicant provides: * a typewritten statement with pictures * a typewritten assignment history outline * a consultation request, dated 14 July 2015, showing service-connected disabilities * a typewritten letter to his Member of Congress * four news articles referencing the Purple Heart and TBI * printouts detailing his medical treatment from various healthcare providers affiliated with the Department of Veterans Affairs (VA) 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 Regular Army on 3 January 1966. He completed his initial entry training and was awarded military occupational specialty (MOS) 12B (Combat Engineer). 3. The applicant served in the Republic of Vietnam from on or about 8 June 1966 through on or 4 June 1967, and once again from on or about 29 January 1968 through on or about 17 December 1968. 4. The applicant was honorably released from active duty on 17 December 1968 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement). His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 2 years, 11 months, and 15 days of total active service, including 1 year, 10 months and 15 days of foreign service. His DD Form 214 does not show he was awarded the Purple Heart. 5. Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) is blank, indicating the absence of any recorded wounds that required treatment or were made part of the official record. Additionally, Item 41 (Awards and Decorations) shows no entry indicating he was awarded the Purple Heart. 6. The applicant's available record does not contain orders for the Purple Heart, nor does it contain any documentation that indicates he was treated for wounds or injuries he sustained as a result of hostile forces during his service in the Republic of Vietnam. 7. The applicant's name does not appear on the Vietnam casualty roster. 8. The applicant provides: a. A typewritten letter, in which he lists his tour history while in the Republic of Vietnam from June 1966 to June 1967 and February 1968 to December 1968. He states he did not ask for a second tour but he wasn't given an option. b. A one page copy of three photographs of people on a road, with the handwritten annotation "October 1966." c. A typewritten timeline of his assignment history while in the Republic of Vietnam. Below the heading "October 1966" is the entry: Some time the first couple of weeks in October 1966 enemy had placed land mines in the road way just out of Saigon. I was riding on the APC when it hit a mine and I was blown off the tank. The driver was killed. This is when my kidney started hurting me and when I got to camp I saw a medic and he said it was a bruise. That I had bruised my kidney. It hurt off and on the remainder of my tour. d. A consultation request, dated 14 July 2015, which is highlighted to show he has cystic disease of the kidneys, service-connected. e. A typewritten letter to his Member of Congress, in effect, thanking him for assistance with a VA disability claim, dated 15 July 2015. He also details the alleged incident that occurred in the Republic of Vietnam, and being blown off an APC. The letter is not signed, and the statement is cut-off at the end of the page where it appears there was more to the letter. f. Four news articles publicizing the Depart of the Army's criteria change to injuries, which may make Soldiers eligible for the Purple Heart. One article describes TBI symptoms. g. A VA medical history printout that shows a problem listed as late effect of traumatic injury to brain, entered 30 March 2015. The VA printout also shows other active medical concerns doctors are helping him manage. The VA medical documents do not show any dates of the onset of his TBI symptoms. 9. The U.S. Army Human Resources Command (HRC) informed the applicant on 11 April 2006, via letter, that his request for award of the Purple Heart could not be authorized at that time. His request to HRC was based on a kidney injury; however, HRC noted that there was no evidence he was treated for wounds received as a result of enemy action and his injuries were not made a matter of official record. REFERENCES: Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound or wounds sustained in action against an enemy or as a result of hostile action. Substantiating evidence must be provided that verifies the wound resulted from hostile action, required treatment by medical personnel, and that treatment was made a matter of official record. a. A wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions listed above. A physical lesion is not required. However, the wound for which the award is made must have required treatment, not merely examination, by a medical officer. Additionally, treatment of the wound will be documented in the Service member’s medical and/or health record. Award of the PH may be made for wounds treated by a medical professional other than a medical officer provided a medical officer includes a statement in the Service member’s medical record that the extent of the wounds was such that they would have required treatment by a medical officer if one had been available to treat them. b. When contemplating an award of the PH, 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 sole justification for award. c. Examples of enemy-related injuries which clearly justify award of the PH include concussion injuries caused as a result of enemy-generated explosions resulting in a mild traumatic brain injury or concussion severe enough to cause either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the concussive incident. d. Examples of injuries or wounds which clearly do not justify award of the PH include post-traumatic stress disorders, hearing loss and tinnitus, mild traumatic brain injury or concussions that do not either result in loss of consciousness or restriction from full duty for a period greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function. e. When recommending and considering award of the PH for a mild TBI or concussion, the chain of command will ensure that both diagnostic and treatment factors are present and documented in the Soldier’s medical record by a medical officer. DISCUSSION: 1. The applicant contends he should be awarded the Purple Heart for TBI injuries resulting from an enemy mine blast while serving in the Republic of Vietnam. 2. The applicant's record does not contain evidence that shows he was wounded or injured during his service in Vietnam. Similarly, the Vietnam casualty roster does not indicate he was wounded/injured. 3. The evidence provided does not indicate the applicant suffered, as a result of hostile action, a concussion or TBI so disabling as to cause either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the incident. 4. The applicant’s subsequent diagnosis/treatment of TBI by the VA is noted. However, there is no evidence the cause of his TBI is directly associated with the alleged mine explosion in October 1966, and the TBI does not comply with the regulatory guideline stated in the reference above. 5. The governing Army regulation provides that in order to be awarded the Purple Heart, a wound must be as a result of a hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014846 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001226 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2