IN THE CASE OF: BOARD DATE: 19 September 2018 DOCKET NUMBER: AR20160011161 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 September 2018 DOCKET NUMBER: AR20160011161 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 September 2018 DOCKET NUMBER: AR20160011161 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 incurred a shrapnel wound in the Republic of Vietnam. b. He was unable to obtain the proper medical treatment documentation for the shrapnel injury he received during the mortar, rocket, and artillery attack due to non-availability of medical services during the attack on Khe Sanh I. c.  He provided self-aid utilizing the aircraft first aid kit. d.  The shrapnel was not discovered until it created mobility issues in his knee and it was confirmed by the Department of Veterans Affairs (VA) and surgically removed on 18 November 2015 by the VA. 3. The applicant provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Headquarters, 1st Air Cavalry Division, General Orders Number 8561, dated 16 July 1968 * VA Progress Notes * Summary, dated 27 March 2016, from Anderson Materials Evaluation, Incorporated * Congressional correspondence * two page VA Rating Decisional Document extract, undated 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 was inducted into the Army of the United States on 31 August 1966. 3. He served in Vietnam during the period 31 August 1967 to on or about 3 August 1968. While in Vietnam, he participated in four campaigns and he was assigned to the 11th Aviation Company, 1st Cavalry Division (Airmobile). 4. Headquarters, 1st Cavalry Division (Airmobile), General Orders 113, dated 8 January 1968, awarded him the Air Medal for the period October 1967 to December 1967. 5. Headquarters, 1st Cavalry Division (Airmobile), General Orders Number 6514, dated 27 June 1968, awarded him the Army Commendation Medal meritorious service in connection with military operations against a hostile force in the Republic of Vietnam during the period September 1967 to August 1968. 6. Headquarters, 1st Cavalry Division (Airmobile), General Orders Number 7379, dated 5 July 1968, awarded him the Army Commendation Medal with "V" Device for heroism in connection with military operations against a hostile force in the Republic of Vietnam on 25 June 1968. 7. Headquarters, 1st Cavalry Division (Airmobile), General Orders Number 9796, dated 10 August 1968, awarded him the Air Medal (1st through 16th Oak Leaf Clusters) for the period 30 December 1967 to 31 July 1968. 8. Headquarters, 1st Air Cavalry Division, General Orders Number 8561, dated 16 July 1968, awarded him the Air Medal with "V" Device for heroism while participating in aerial flight in the Republic of Vietnam during the period 31 March 1968 to 10 April 1968. This order also shows that on 1 April 1968, Khe Sanh combat base was under mortar, rocket, and artillery fire. 9. His DA Form 20 (Enlisted Qualification Record) shows in: a.  item 40 (Wounds) – no entry, b.  item 41 (Awards and Decorations) – * Republic of Vietnam Campaign Medal with Device (1960) * National Defense Service Medal * United Nations Service Medal * Air Medal * one overseas service bar * Army Commendation Medal with "V" Device * Army Commendation Medal * Air Medal with Device * Air Medal (1st through 18th Oak Leaf Cluster) * second overseas service bar 10. His Standard Form 89 (Report of Medical History), dated 23 August 1968, does not show he identified any injuries incurred in combat. 11. His Standard Form 88 (Report of Medical Examination), dated 23 August 1968, shows he was cleared for separation and there was no indication of any medical conditions related to combat exposure. 12. On 24 August 1968, he was honorably released from active duty. His DD Form 214 shows he was awarded or authorized the: * National Defense Service Medal * Vietnam Service Medal * Republic of Vietnam Campaign Medal with Device (1960) * Expert Marksmanship Qualification Badge with Rifle Bar (M-14) * one overseas service bar 13. The applicant provided: a.  VA Progress notes that show: (1)  on 13 May 2015, he was advised he had shrapnel in his right knee described as pea size movable hard lump right knee which was giving him right knee pain and (2)   on 18 November 2015, the shrapnel was surgically removed, given to the applicant, and he was released from the hospital on the same date. b.  Congressional correspondence in which he provided a self-authored statement, dated 22 February 2016, wherein he described an incident occurring after a helicopter landing Marine base Khe Sanh, Vietnam, on 1 April 1968. He stated: (1)  The crew received incoming fire and sought cover in the nearest ditch. While running, he was blown off his feet by an explosion close to him. He began rolling over which enabled him to fall into the ditch and return fire towards the enemy. (2)  After receiving an all clear, he left the ditch and he noticed a cut about an inch long on his right knee. Since the base had undergone heavy fire that day and there was no chance to find a medic, he treated his wound with bandages from their helicopter's first aid kit. (3)  After the wound healed with no problems, soreness began because something was moving in his knee. A small lump then appeared on the outside of his knee. He felt no pain if he kept it pushed down away from his knee cap, but if it got close to his knee cap he could hardly move his leg and the pain was unbearable. (4)  In May 2015, the VA identified the lump and identified it as shrapnel and on 18 November 2015, the VA removed the shrapnel from his right knee. (5)  He has not been in any situation to get shrapnel in his body since being honorably discharged from the U.S. Army, c.  a medical summary, dated 27 March 2016, from the Anderson Materials Evaluation, Incorporated, Materials Characterization and Failure Analysis Laboratory, which shows: (1)  a magnetic hard material was surgically removed from the applicant's right knee on 18 November 2015, (2)  he provided the material to the laboratory and on 23 February 2016. Doctors C___ R. A___ and K___ A. W___ evaluated the magnetic hard material and determined it was primarily a magnetic steel; the surface of this material was rich in aluminum, chlorine, sulfur, and potassium; all of which were used in rocket propellant. The evaluators stated chlorine and sulfur were also likely to be used as propellants for mortar and artillery rounds. The steel surface was apparently exposed to hot gases that reacted with the steel surfaces and left high concentrations of these elements in that surface. The sulfur and chloride taken up by the steel cause deep corrosion of steel, especially when both are present together. (3)  The applicant believes this shrapnel struck his knee on 1 April 1968 while in action at Khe Sanh, Vietnam. His actions on that day earned him the Air Medal with "V" Device when he was under mortar, rocket, and artillery fire. (4)  It was concluded that the very corroded steel fragment was most likely shrapnel from a rocket, though it is also possible from a mortar or artillery round. d.  two pages of his VA Decisional Rating document, undated, that shows he received the following disability ratings for his right knee conditions: (1)  10 percent for status post right knee shrapnel injury extraction with patellofemoral pain syndrome (limitation of flexion) effective 2 June 2016, (2)  0 percent for scar, status post right knee shrapnel injury and extraction effective 2 June 2016, and (3)  30 percent for status post right knee shrapnel injury and extraction with subluxation (knee, other impairment) effective 2 June 2016. REFERENCES: 1. Army Regulation 600-8-22 (Military Awards) provides that: a.  The Purple Heart is awarded for a wound sustained 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 military medical personnel, and the medical treatment must have been made a matter of official record. b.  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. c.  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 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 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 * post-traumatic stress disorder * airborne (for example, parachute/jump) injuries not caused by enemy action * hearing loss and tinnitus (for example, ringing in the ears) * 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 * 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 2. 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. DISCUSSION: 1. The applicant contends he should have been awarded the Purple Heart for a shrapnel would he received in the Republic of Vietnam. 2. The available evidence shows he received the Air Medal with "V" Device for the period 31 March 1968 to 10 April 1968 and on 1 April 1968, the Khe Sanh combat base was under mortar, rocket and artillery fire. 3. Award of the Purple Heart requires evidence to verify: * the wound was the result of hostile action * the wound required treatment by medical personnel * documentation of the wound in official records 4. The applicant admits he did not receive medical treatment by medical personnel and he treated himself with a first aid kit. 5. Although he contends there were no medical personnel available to treat his injury, there is no mention of a shrapnel injury on his Standard Forms 88 or 89 completed at the time of his separation. His military records are void of medical evidence showing he was injured as a result of hostile action. 6. He did provide evidence that the VA removed a piece of shrapnel from his knee, and subsequently had the shrapnel analyzed. The composition of the fragment was determined to be magnetic steel and the chemicals on and in the fragment led the laboratory to the conclusion that the fragment came from a mortar or artillery round. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160011161 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160011161 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2