ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    11 April 2019

	DOCKET NUMBER:  AR20170014879


APPLICANT REQUESTS:  reconsideration of his earlier request for physical disability retirement and award of the Purple Heart (PH).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* The applicant's statement, in lieu of DD Form 149 (Application for Correction of Military Record), which accompanies his previous DD Form 149
* DA Form 20 (Enlisted Qualification Record), page 3
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* VA Form 21-526e (Serviceman's Statement Concerning Application for Compensation from the Veterans Administration), dated 12 March 1971
* letter, Department of Veterans Affairs, dated 2 May 2017

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150016849 on 28 March 2017.

2.  The applicant provided new arguments that were not previously considered by the Board, which merit consideration at this time.

3.  The applicant states, in effect:

	a.  His injury occurred while he was stationed at landing zone Uplift Firebase in Vietnam.  He was on the firing line waiting for an assault by enemy before he was injured.  He was trying to escape shrapnel fragments as he entered a safety bunker.  He struck a protruding wooden pole in his middle abdomen.  He was evaluated by a base medical officer who determined severe hemorrhaging with internal bleeding, requiring a blood transfusion.  Another serviceman, X____, witnessed the incident. 

	b.  He was sent to 67th Evacuation Hospital for treatment he could not receive at his location.  He was told he would not be returning to his unit and instead would be sent home and was subsequently transferred to Valley Forge General Hospital, Phoenixville, PA, for additional treatment.  He was later transferred to Veteran's Administration Medical Center, Cleveland.

	c.  A final medical examination before he left service showed no significant change to his injury.  The doctor considered him to be symptom free of his conditions experienced in Vietnam.  The Veterans Administration later found he was 30 percent disabled for anxiety neurosis and possible peptic ulcer.

4.  On 29 March 1968, he enlisted in the Regular Army and served in Vietnam from 7 May 1970 through 28 January 1971.

5.  His DA Form 20 (Enlisted Qualification Record) shows in:

	a.  item 38 (Record of Assignments) his effective date, duty status, and unit as: 

* 16 May 1970, 1st Cook, Headquarters and Headquarters Company, 1st Battalion, 503d Infantry Regiment, 173d Airborne Brigade, Vietnam
* 18 January 1971, Patient, 67th Evacuation Hospital, Vietnam
* 28 January 1971, Casual, en route to Continental United States
* 30 January 1971, Patient, Military Hospital Company, Valley Forge General Hospital, Phoenixville, PA

	b.  item 40 (Wounds) – no entries.

6.  Standard Form 88 (Report of Medical Examination), dated 10 March 1971, conducted for his separation examination, shows the examining physician found he was qualified for separation.  His Physical Profile P-U-L-H-E-S, shows at the time of his separation ratings of "1" in all categories.

7.  DA Form 3082-R (Statement of Medical Condition), dated 11 March 1971, shows he indicated that to the best of his knowledge, there had been no change in his medical conditions since he underwent his separation medical examination.

8.  His DD Form 214 shows he was honorably released from active duty and transferred to control of U.S. Army Reserve, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Section VI, chapter 2, with separation program number (SPN) 201, for expiration term of service.

9.  His DD Form 214 does not show the award for the PH.

10.  On 15 March 1974 the Army Board for Correction of Military Records (ABCMR) denied his request for a change of his narrative reason for separation to medical disability retirement from expiration term of service.  The consultant staff of the Army Surgeon General opined that the applicant was medically fit for retention or appropriate separation under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

11.  On 28 March 2017, the ABCMR considered his request for correction of his record to show award for the PH and that he was determined to be unfit by the physical disability evaluation system (PDES) and retired by reason of physical disability.  The Board also found his name was not on the Department of the Army casualty roster and no orders were issued awarding him the PH.

12.  His name is not listed on the Department of the Army Office of the Adjutant General Casualty Division Casualty Reference Name Listing for the period 1 January 1961 through 30 June 1973, a battle and non-battle listing of Soldiers who were killed, wounded, sick, captured, or missing during their service in Vietnam.

13. 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 Military Awards Branch, revealed no orders for the PH were issued to him.

14.  Army Regulation 600-8-22 (Military Awards) provides the criteria for award of the PH require evidence to verify the injury or wound was the result of hostile action, the injury or wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.  Examples of enemy-related injuries which clearly justify award of the PH include 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.  Examples of injuries or wounds which clearly do not justify award of the PH include accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.  

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  During his separation examination, the examining physician indicated he had no medical conditions which qualified him for entry into PDES at the time of his separation and he was qualified for continued service at the time of his separation.  


BOARD DISCUSSION:

Per the regulatory guidance on awarding the Purple Heart, the applicant must provide or have in his service records substantiating evidence to verify that he was injured, 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. 
After reviewing the application and all supporting documents, the Board found insufficient evidence to show that the injuries incurred by the applicant were as a result of hostile action.  For that reason, the Board recommended denying the portion of the request relating to the Purple Heart.
Additionally, the Board found no new evidence presented by the applicant which would show that he had a medical condition which was of such severity that it would have warranted his entry into the Physical Disability Evaluation System.  Therefore, the Board recommended denying that portion of the request relating to changing his discharge to a medical retirement.  
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 to amend decision of the ABCMR set forth in Docket Number AR20150016849, dated 28 March 2017. 
	 
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.



REFERENCES:

1.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It provides for Medical Evaluation Boards (MEBs) which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria of Army Regulation 40-501, chapter 3.  Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. 

	a.  Paragraph 3-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

	b.  Paragraph 3-2b(2) states that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his continued performance of duty creates a presumption that the member is fit for duty.  Except for a member who was previously found unfit and retained in a limited assignment duty status, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating.

2.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  

	a.  Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service.  Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by a medical evaluation board (MEB) and will be referred to a physical evaluation board (PEB).

	b.  Chapter 7 prescribes a system for classifying individuals according to functional abilities.  The functions have been considered under six factors designated 
"P-U-L-H-E-S."  Four numerical designations are used to reflect different levels of functional capacity.  The basic purpose of the physical profile serial is to provide an index to overall functional capacity.  Therefore, the functional capacity of a particular organ or system of the body, rather than the defect per se, will be evaluated in determining the numerical designation 1, 2, 3, or 4.

3.  Army Regulation 600-8-22 prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards.  It provides the PH is awarded for a wound sustained as a result of hostile action.  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 below.  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.

	a.  The key issue commanders must take into consideration when contemplating an award of this decoration 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.

	b.  Examples of enemy-related injuries which clearly justify award of the PH include 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.

	c.  Examples of injuries or wounds which clearly do not justify award of the PH include accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

4.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) in effect at the time, provided the authority for separation of enlisted personnel upon expiration of term of service.  Chapter 2 stated an individual enlisted, inducted, or ordered to active duty will be discharged or released from active duty on the date upon which he completes the period for which enlisted, inducted, or ordered to active duty.

ABCMR Record of Proceedings (cont)	 AR20170014879


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