ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 January 2019 DOCKET NUMBER: AR20170011958 APPLICANT REQUESTS: award of the Purple Heart (PH). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * self-authored request to Texas Congressman * letter from National Personnel Records Center * self-authored letter * medical records FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: * he was not awarded the PH for an injury received as a result of the explosion of a mortar or artillery shell near his position; he states the injury was deemed to be friendly fire. * he received the injury in late march 1966 when he was serving as an infantryman with the 1st Division, 18th Infantry in Vietnam * he received an ear injury as a result and shows hearing loss in his records * he received treatment in the field and a 10 percent hearing loss after his tour * his position was under enemy fire almost nightly * the exploding shell that caused his injury was a U.S. shell, but it fell short and was very close to the applicant * the incident was labeled as friendly fire, but it was combat and in a war zone and during his normal duties * the initial 10 percent hearing loss has progressed over the years * he continues to have issues with his ear * all of this is a result of one night in a combat zone * he feels that as a vet[eran] he has been overlooked in this regard 3. The applicant provides medical records indicating he sought medical attention while stationed in Vietnam for ear pain. The medical records indicate that his ears were compacted with ear wax and they were irrigated. There is no evidence in the medical records that the injury to his ear was caused by a mortar/artillery explosion. There is no evidence in the applicant's service record indicating he was injured by enemy action. 4. The applicant was inducted into the Regular Army on 13 July 1965. His DA Form 20 (Enlisted Record Brief) indicates in: * Item 31 (Record of Assignments), he served in the Republic of Vietnam from 2 December 1965 through 1 December 1966 * Item 40 (Wounds) is void of an entry * Item 41 (Awards and Decorations) is void of an entry for the PH 5. The applicant's service records are void of a recommendation for award, orders, or a certificate indicating he was awarded the PH. 6. The applicant's records contain two SF 88s (Report of Medical Examination) one for his induction into the Army and one for his expiration term of service. A comparison of item 21 (Audiometer) between the two reports signifies a difference in his hearing from entry into the service and discharge from the service. 7. A review of the Awards and Decorations Computer Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the U.S. Army Human Resources Command, did not reveal orders that confirm he was awarded the PH. He was, however, awarded the Combat Infantryman Badge as per Special Orders number 120. 8. A review of the Vietnam casualty roster, compiled by the Adjutant General's Office Casualty Division, is void of the applicant’s name as a casualty. 9. Army Regulation 600-8-22 (Military Awards) states the PH is awarded for a wound sustained in action against an enemy or as a result of hostile action. Examples of injuries or wounds which clearly do not justify award of the PH are as follows: Hearing Loss and tinnitus (for example: ringing in the ears) 10. Title 10 U.S. Code 1129 provides guidance when a member of the Armed Forces is killed or wounded by friendly fire. They shall be treated in the same manner as a member who is killed or wounded in action by an enemy. They have to be wounded or killed while directly engaged in armed conflict. BOARD DISCUSSION: The Board considered the applicant’s request with all supporting documents, evidence in the service record and applicable policies and guidance. The applicant provides evidence of a hearing loss condition that occurred while he served in Vietnam. In accordance with Army Regulation 600-8-22 (Military Awards), the criteria for award of the Purple Heart was not met and the regulation further specifies “examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: hearing loss and tinnitus.” The Board denies request for 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. ___________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. ADMINISTRATIVE NOTES: 1. The applicant served in the Republic of Vietnam from 2 December 1965 through 1 December 1966. During that period he served in the following campaigns: * Vietnam Defense 8 March 1965 through 24 December 1965 * Vietnam Counteroffensive 25 December 1965 through 30 June 1966 * Vietnam Counteroffensive, Phase I 1 July 66 through 31 May 1967 2. The applicant was a member of 1st Battalion, 18th Infantry Brigade from 2 December 1965 through 1 December 1966. Department of the Army General Orders 21, dated 4 April 1969 awarded the 1st Battalion, 18th Infantry Brigade the Republic of Vietnam Gallantry Cross Unit Citation for the period of 12 July 1965 through 16 October 1968. The applicant was in the Republic of Vietnam during this time frame. 3. Department of the Army General Orders 53, dated 22 October 1970 awarded the Republic of Vietnam Civil Actions Honor Medal First Class to 1st Battalion, 18th Infantry for service from 12 July 1965 through 7 April 1970. The applicant was a member of that unit during that time period. 4. The applicant's Enlisted Record Brief indicates he qualified as a marksman with his rifle. 5. As a result, correct the applicant's DD Form 214 by: * deleting the Vietnam Service Medal with 1st and 2d Bronze Service Stars * adding the Vietnam Service Medal with 3 Bronze Service Stars * adding the Vietnam Gallantry Cross Unit Citation * adding the Vietnam Civil Actions Honor Medal First Class * adding the Marksman Marksmanship Badge with Rifle Bar REFERENCES: 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. 2. Army Regulation 600-8-22 (Military Awards) states 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 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 record. Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: Hearing Loss and tinnitus (for example: ringing in the ears) 3. Title 10, U.S. Code section 1129 provides guidance when members are killed or wounded in action by friendly fire. a. For purposes of the award of the Purple Heart, the Secretary concerned shall treat a member of the armed forces described in subsection (b) in the same manner as a member who is killed or wounded in action as the result of an act of an enemy of the United States. b. A member described in this subsection is a member who is killed or wounded in action by weapon fire while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States, unless (in the case of a wound) the wound is the result of willful misconduct of the member. c. This section applies to members of the armed forces who are killed or wounded on or after December 7, 1941. In the case of a member killed or wounded as described in subsection (b) on or after December 7, 1941, and before November 30, 1993, the Secretary concerned shall award the Purple Heart under subsection (a) in each case which is known to the Secretary before such date or for which an application is made to the Secretary in such manner as the Secretary requires. ABCMR Record of Proceedings (cont) AR20170011958 3 1