ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 23 May 2019 DOCKET NUMBER: AR20160010274 APPLICANT REQUESTS: reconsideration of his earlier request for award of the Purple Heart. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), dated 20 September 2018 * DD Form 214 (Report of Separation from the Armed Forces of the United States) * Department of Veteran Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 20 November 2013 * VA Form 21-4138, dated 21 November 2013 * VA Appointment Schedule, dated 12 March 2014 * VA Letter, dated 29 April 2014 * VA Form 21-4138, dated 6 May 2014 * Self-authored Letter, dated 21 April 2015 * VA Letter, dated 6 May 2015 * Army Board for Correction of Military Records (ABCMR) Docket Number AR20150009701, dated 12 May 2016 * Self-authored Letter, dated 26 May 2016 * Case Management Division Letter, dated 21 February 2018 * VA Medical Records * Self-authored Letter, dated 10 May 2018 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20150009701 on 12 May 2016. 2. The applicant provided new arguments not previously considered that warrant reconsideration at this time. 3. The applicant states: a. On 20 November 2013, the correct diagnosis or examination of his malady was determined to be traumatic brain injury (TBI). On 5 March 2014, Dr. M____ L____, insisted he undergo the examination for post-traumatic stress disorder (PTSD). The report was faulty and incorrect for his malady. b. He believes the VA medical report, dated 5 March 2014, submitted by psychologist M____ L____ was the basis for denial of his request for award of the Purple Heart. He requested award of the Purple Heart because he knows he earned it even though his injury was not as severe as many of his comrades. c. The proper diagnosis on 20 November 2013 should have been the basis for judging his malady. 4. The applicant's military records are not available for review. It is believed the applicant's records were destroyed in the 1973 fire at the National Personnel Records Center. The case is being considered using the documents provided by the applicant and a hospital admission card created by the Office of the Surgeon General for the year 1953. 5. The available records show the applicant enlisted in the Regular Army on 7 March 1951. 6. His DD Form 214 shows: a. he was honorably discharged on 6 March 1954; b. he completed 3 years of active service, including 10 months and 8 days of foreign and/or sea service; and c. he was awarded or authorized the: * Korean Service Medal with two bronze service stars * United Nations Service Medal * Army Good Conduct Medal * Combat Infantryman Badge * National Defense Service Medal 7. The applicant provided: a. a self-authored VA Form 4138, dated 20 November 2013, in which he stated: (1) He was in the Korean combat zone from July 1952 through May 1953 for a total of 10 months and 8 days. He held the position of infantryman with Pioneer and Ammunitions Platoon, Headquarters Company, 31st Infantry Regiment, 7th Infantry Division. The entire company was position in the area called the main line of resistance. There was constant enemy mortar and artillery fire entering their positions. (2) He and other Soldiers had to supply needed ammunition by going through trenches, bunker-to-bunker, often times hunkering down to avoid enemy incoming shelling and hoping that no shell landed to destroy them. The noise was deafening as well as frightening. (3) One day an artillery or mortar shell exploded, narrowly missing him. As a consequence of the explosion, he experienced a paralysis of his entire left arm, which just hung listlessly and uncontrollably by his side. He was sent to a hospital in Seoul, Korea. (4) He was treated by a psychiatrist who diagnosed his condition as psycho- neurosis. Since that paralytic experience, he undergoes a constant defensive posture that pressures the right side of his head. The pressure feels like something is there, but he knows there is nothing there but part of his brain, which makes him undergo a real defensive stance, not an imaginary stance. As a result, he seldom has a clear head and he is readily and constantly on defense against certain types of people, which he defines as anyone who appears to be a threat or from extraneous noises from New Year's Eve and July 4th celebrations. (5) He experiences ringing in his ears, which appears for no apparent conscious reason. He has kept his psychoneurotic condition to himself for far too many years because he feared he would be thought of as crazy or mentally unbalanced because he saw a psychiatrist for mental treatment. He did not want that persona or stigma placed upon him. (6) He listed his current diagnosis as TBI; b. a VA Form 4138 from his spouse, dated 21 November 2013, who indicated she had been married to him for over 58 years. She stated they had a good marriage; however, there had been periodic episodes that frightened her. She stated her husband kicks violently while sleeping and sometimes hurts her. When she wakes him and asks what's wrong, he responds with "nothing." She can tell something is wrong, but she is glad she is with him to soothe and comfort him during and after his violent and frightening episodes. She also stated he is a combat veteran who sustained a terrible mishap during his tour of duty. He lost the use of his right arm through paralysis because of shock from continuous bombardment of enemy fire. She is almost sure his nightmarish behavior stems from his combat duty in Korea. He was only 18 years old then, a frightening and shocking experience for anyone at that age; c. his Compensation and Pension Examination Note for PTSD from Dr. M____R. L____, dated 5 March 2014, who indicated: (1) The applicant did not have PTSD or a mental disorder that conformed to the criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. He had no diagnosis of TBI. She noted his military service, awards, post-service education, and retirement from the Federal Government after 30 years of service. She also indicated he was accused of malingering and in his distress of the accusation he was able to lift his arm. He was sent back to his unit in Korea and diagnosed with psychoneurosis. He was also seen for a neuropsychiatric examination in March 1955 where there was no evidence of a psychosis or a neurosis at the examination. (2) The applicant did not report symptoms of intrusive re-experiencing or avoidance of trauma-related stimuli. He reported occasional hypervigilance and exaggerated startle responses, which occur less than once a month. Additionally, the symptoms did not interfere with functioning and did not warrant a psychiatric diagnosis; d. a letter from the VA, dated 29 April 2014, in which he was advised of a monthly monetary entitlement for a 10-percent disability rating for tinnitus with an effective date of 27 November 2013. His conditions of PTSD and anxiety were determined not to be related to his military service; e. a VA Form 4138, dated 6 May 2014, in which he stated he disagreed with Dr. M____ L___'s statement she provided in his examination on 5 March 2014. His left arm rather than his right arm was affected. He was never called a malingerer while in the military. He was affected by a near miss from either a mortar or artillery shell. Dr. S____, a VA doctor, said something to him about TBI. He requested an additional examination with a different physician and reconsideration of his VA claim; f. a self-authored letter, dated 21 April 2015, in which he explains his attempts to obtain award of the Purple Heart through the VA by going through compensation. He was not interested in compensation, but in award of the Purple Heart. He consented to go through the compensation phase, not realizing that going through the process would make him divulge his long-held suffering and innermost secret of having mental problems. He did not tell anybody about this except his wife. For some time now he has been trying unsuccessfully to secure his medical records to support his claim; and g. his VA compensation decisional letter, dated 6 May 2015, which shows the VA granted him a 10-percent disability rating for each of his conditions listed as TBI and tinnitus. His condition of PTSD, to include anxiety, was determined not to be incurred in or aggravated by military service. Additionally, his request for reconsideration of his 26 April 2014 decision, which denied service connection for his PTSD, to include anxiety, because there was no new evidence of a diagnosis based on the examination, was reviewed again. He underwent a new VA PTSD examination which did not show evidence his symptomology met the criteria for the diagnosis of PTSD, anxiety, depression, or any other mental health condition as he did not endorse clinically significant psychiatric symptoms. As the evidence did not reveal a clinical diagnosis of this condition, service connection could not be established. His overall or combined rating was listed as 20 percent effective 7 May 2014. 8. On 12 May 2016, the ABCMR denied his request for award of the Purple Heart in Docket Number AR20150009701, citing there were no orders or any other evidence showing he was awarded the Purple Heart and his available military records did not show he was wounded or injured in action as a result of a hostile act of the enemy. 9. On 26 May 2016, he submitted arguments and requested reconsideration of his request for award of the Purple Heart. 10. On 21 February 2018, the Army Review Boards Agency Case Management Division administratively closed his request for reconsideration, citing he had not provided new evidence with his request. The applicant was advised the ABCMR would not consider any further requests for reconsideration without new evidence or argument and he had the option to seek relief in a court of appropriate jurisdiction. 11. On 10 May 2018, the applicant provided a self-authored letter in which he stated: a. He requested and received Dr. L____'s report of his PTSD evaluation. Her report concluded he must have been malingering. He questioned the origination of this idea and stated no doctor or anyone who knew him while he was in the military could write or say anything like that about him. Dr. L____ should have looked at his DD Form 214 to give her some idea of the type of Soldier he was, a Soldier with two bronze stars (should read bronze service stars for campaign participation) and Combat Infantryman Badge, as well as an Army Good Conduct Medal. Her malingering idea in her report greatly offended him and he believes his ABCMR denial decision for award of the Purple Heart was due to the false information in her report. He desires an apology from Dr. L____, if possible; and b. the Purple Heart, to him, represents valor, indicating a person who exhibits mental and physical strength with spirit while doing his or her duty or assignment. He knows he exhibited valor during his time on the front line in Korea, in the hospital, and resting and recuperating in Japan. 12. He also provided a personal storyboard and excerpts from his book, "Young Man in a Hurry," in which he describes his military service, the experience with his left arm, and his diagnosis of psychoneurosis disorder. 13. His name is not listed in the Korean casualty file. 14. A review of the Department of the Army Office of the Surgeon General Hospital Admission Cards database for the years 1952 and 1953 failed to show the applicant as a casualty (a person killed or injured in a war or accident). 15. His records are void of evidence showing he incurred a mild TBI 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 a concussive incident. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board determined that there was insufficient evidence to grant relief. The Board determined that no documentation or supporting statements were provided or found within the record showing the applicant was treated by military medical personnel, and the medical records available do not indicate any wounds or scars that could have derived from a combat injury. Therefore the applicant did not meet the regulatory requirements for award of the Purple Heart. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X :X :X DENY APPLICATION ? 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. SIGNATURE: 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. ADMINISTRATIVE NOTE(S): not applicable. REFERENCES: Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. 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. 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 Purple Heart 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. Examples of enemy-related injuries, which clearly justify award of the Purple Heart, are as follows: * injury caused by enemy bullet, shrapnel, or other projectile created by enemy action * injury caused by enemy-placed trap or mine * injury caused by enemy-released chemical, biological, or nuclear agent * injury caused by vehicle or aircraft accident resulting from enemy fire * concussion injuries caused as a result of enemy-generated explosions * mild TBI 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 c. Examples of injuries or wounds, which clearly do not justify award of the Purple Heart, are as follows: * frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951) * trench foot or immersion foot * heat stroke * food poisoning not caused by enemy agents * chemical, biological, or nuclear agents not released by the enemy * battle fatigue * disease not directly caused by enemy agents * accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action * self-inflicted wounds, except when in the heat of battle and not involving gross negligence * PTSD * airborne (for example, parachute/jump) injuries not caused by enemy action * hearing loss and tinnitus (for example, ringing in the ears) * mild TBI 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 * abrasions and lacerations (unless of a severity to be incapacitating) * bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer) * soft tissue injuries (for example, ligament, tendon, or muscle strains, sprains, and so forth) * first degree burns 3. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160010274 2 1