IN THE CASE OF: BOARD DATE: 22 August 2018 DOCKET NUMBER: AR20170000773 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x____ ___x____ ____x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 22 August 2018 DOCKET NUMBER: AR20170000773 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 as follows: * deleing from item 23a "11D2O" * adding to item 23a the entry "11D4O" 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to the Purple Heart. ___________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: 22 August 2018 DOCKET NUMBER: AR20170000773 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 and correction to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the Purple Heart and his MOS as 11D4O vice 11D2O. 2. The applicant states he was wounded in combat and it is an injustice that he did not receive the Purple Heart. In addition, his MOS is incorrectly shown on his DD Form 214. When he was promoted, his MOS changed from 11D2O to 11D4O. 3. The applicant provides – * DD Form 214 * personal statement * excerpts of his military medical records * copies of correspondence with the National Personnel Record Center * copies of correspondence 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. On 20 February 1968, the applicant was inducted into the Army of the United States. He was trained in and qualified as an Infantryman in military occupational specialty 11D (Armor Intelligence Specialist). 3. He served in Vietnam from 21 July 1968 to 19 July 1969 and he was assigned to I Troop, 3rd Squadron, 11th Armored Calvary Regiment. 4. His DA Form 20 (Enlisted Qualification Record) contains the following pertinent entries: * Item 38 (Record of Assignments) no entry showing patient status * item 40 (Wounds) none shown * item 41 (Awards and Decorations) no entry for the Purple Heart 5. Special Orders Number 47 dated 16 February 1970 issued by Headquarters, 24th Infantry Division announced his promotion to SGT and awarded him MOS P11D4O [primary] and withdrew MOS P11D2O. 6. On 19 February 1970, he was honorably released from active duty in the rank/grade of sergeant (SGT)/pay grade E-5. His DD Form 214 shows he completed 2 years active service with 11 months and 29 days in the Republic of Vietnam. Item 23a (Specialty Number and Title) contains the entry "11D2O." 7. There is no evidence of record in several typical sources showing he was injured or wounded as a result of hostile action or that he was awarded the Purple Heart: a. his name is not shown on the Vietnam casualty roster, a compilation of most of those who were wounded in Vietnam, that is commonly used to verify eligibility for the Purple Heart. b. a review of the Awards and Decorations Computer Assisted Retrieval System maintained by the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal orders showing he was awarded the Purple Heart. 8. In the applicant's personal statement he describes his military duties, unit of assignment and locations in the Republic of Vietnam. a. In October 1968, during night operations his unit encountered enemy forces who retreated to a stream bed. His armored cavalry unit could not maneuver into the stream bed so his platoon leader decided to engage the enemy with 155 millimeter artillery fire. There was an error in the calculation of the artillery firing range wherein instead of adjusting fire an additional 50 meters it was adjusted by 500 meters. With this adjustment, the artillery rounds exploded directly on his location. His equipment was damaged and he suffered a concussion or as he states, "I was rendered semi conscious (sic), dazed and my ear bleeding." a. On 5 September 1969, a military medical provider diagnosed the applicant with a perforated tympanic membrane (middle ear) due to loud explosions in October 1968 when his ear began bleeding. It was suggested the applicant had hearing loss. He was referred to a specialty clinic for continued treatment. b. On 8 April 1974, he sought medical treatment at the VA for dizziness and vertigo. The VA provider stated the applicant was well until 1968 when he was in Vietnam and was near an exploding artillery shell. He reported his ear bled and he began having tinnitus and headaches. 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. a. 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 mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy generated explosions. b. Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: frostbite or trench foot injuries; 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 disorders; and/or jump injuries not caused by enemy action. c. The Purple Heart may be awarded for concussion injuries caused as a result of enemy generated explosions: mild traumatic brain injury or a 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. Award of the Purple Heart for this type of injury is retroactive only to 11 September 2001. 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 criteria for the Purple Heart requires the submission of substantiating evidence to verify the injury/wound was the result of hostile action, the injury/wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record. 2. The absence of orders necessitates a review of other sources or evidence to support the applicant's contention he was wounded in action. The available evidence of record does not show he was wounded or injured as a result of hostile action or treated for such wounds during his period of service in Vietnam. In October 1969, he sought medical treatment for bleeding of his ear (tympanic membrane) and then again in 1974 from the VA for dizziness and vertigo. 3. Special orders withdrew MOS 11D2O and awarded him MOS 11D4O; therefore, a correction to his DD Form 214 is warranted. //NOTHING FOLLOWS// ABCMR Record of Proceedings Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170000773 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170000773 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2