ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 September 2019 DOCKET NUMBER: AR20170015060 APPLICANT REQUESTS: compensation for wounds received in action in Vietnam. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record * DA Form 20 (Enlisted Qualification Record0 * two Purple Heart memoranda * Department of Veterans Affairs (VA) Rating Decision * two letters from the VA 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 (ABCMR) 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: a. He was discharged from the U.S. Army on 9 September 1971 at Fort Buchanan, PR without proper compensation for wounds received in action by the enemy on 3 February 1971, while serving with Company A, 2nd Battalion, 1st Infantry Regiment, 196th Infantry Brigade, in Chi-Lai, Vietnam. He considers that the injustice was the result of a letter, dated 26 May 1971, originated by Department of the Army, Headquarters, 23rd Infantry Division and sent to the 3rd Army Command, Fort Buchanan, PR. This letter specifically stated that his wounds were not a matter of official record. There was no proper investigation about the wounds he received. His previous Board Record of Proceedings stated his name was on the Vietnam casualty roster as being wounded in action. b. He is a 70 year old Vietnam Veteran wounded in action by the enemy. He was honorably discharged without compensation for wounds received in action by the enemy. He was also not oriented about his rights at the time. After his discharge, he continued working for a construction company performing mainly office work; however, he continues to experience low back with lower extremity weakness and difficulty walking and moving. Sometimes it is necessary for him to stay in bed for 3 to 4 days taking muscle relaxant and anti-inflammatory medications. On 21 January 2012, after being oriented by a veteran friend, he filed a claim to the VA concerning his wounds, low back pain, and diabetes type II. c. The VA evaluated his cases and approved him for 80 percent (%) service-connected compensation effective October 2012. It was 40 years late. He actually has a 100 % VA compensation letter, dated 20 March 2017. He considers that he was entitled for that compensation from the date of his release from active service on 17 September 1971, of at least 40 or 50% of his actual compensation. 3. The applicant provides copies of the following: a. Purple Heart memorandum, dated 19 February 1971, which stated he was wounded in action and his military records failed to reflect award of the Purple Heart b. Purple Heart memorandum, dated 26 May 1972, which stated he was not awarded the Purple Heart by his command and the wounds were not a matter of official record. c. VA Rating Decision, dated 23 October 2012, showing he was awarded service-connection compensation for residual right thigh muscle injury; residual right lower abdomen muscle injury; residual left calf muscle injury; diabetes; shell fragment wound for right thigh, left calf, and right lower back scars; and malaria. d. VA letter, dated 29 October 2012, wherein he was advised of the increase of service-connected compensation received on 30 January 2012. e. VA letter, dated 3 June 2013, wherein he was advised his previous service-connected conditions had not changed and entitlement to individual unemployability was denied. 4. A review of the applicant’s service records shows: a. He was inducted into the Army of the United States on 18 June 1969. He served in Vietnam from 18 November 1969 to 4 May 1970. b. He was honorably released from active duty on 17 September 1971 and was transferred to the U.S. Army Reserve Control Group. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 2 years and 3 days of active service. This form does not show he was awarded/authorized the Purple Heart. c. On 27 June 2017, pursuant to his request, the ABCMR determined the evidence of record showed he was wounded in action on 3 February 1970 and his name was recorded on the Vietnam casualty roster; therefore, his DD Form 214 should be corrected to show the Purple Heart and several other awards for his service in Vietnam. d. On 3 July 2017, he was notified that action would be taken to correct his records and he would be provided with official notification as soon as the directed correction had been made. On 4 August 2017, he was provided a DD Form 215 (Correction to DD Form 214) adding the Purple Heart and other awards to his 1971 DD Form 214. 5. By regulation (AR 600-8-22), award of the Purple Heart 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 personnel, and the medical treatment must have been made a matter of official record. The regulation did not specify compensation for being wounded in action. 6. Title 31 U. S. Code (USC), section 3702, also known as the Barring Act, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U. S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. 7. With respect to your alleged entitlement to unpaid pay and allowances, irrespective of the Barring Act, a service member claiming additional pay and allowances previously accrued but not paid, has the burden of proving that he/she was not paid the pay and allowances claimed. The claim is disallowed where government records necessary to either justify or refute it have been destroyed or become unavailable due to lapse of time, and there is no other documentation available from any source to establish the liability of the United States 8. By law (Title 10, USC, section 1413a), there are two Combat-Related Special Compensation programs that began on 1 June 2003 and 1 January 2004 to offer compensation to combat-disabled retirees. Eligible members are those retirees who have 20 years of service for retired pay computation (or 20 years of service creditable for Reserve retirement at age 60) and who have disabilities that are the direct result of armed conflict, especially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war. Qualified disabilities must be compensated by the VA and rated at least 10 percent disabling. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. The applicant’s contentions were carefully considered. He requests compensation for wounds received while serving. He provided evidence that shows he is 100% service-connected with the VA. The law allows the VA to award compensation for disabilities that were incurred in or aggravated by active military service. The Board agreed there is no relief to grant at this time because he did not specifically identify an error or injustice, or the corrective action sought out for in his case. 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. 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. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-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), in effect at the time, governed the eligibility and award authority of all awards and decorations for issued to members of the U.S. Army. The regulation stated the Purple Heart is awarded for a wound sustained while in action against and 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. The regulation did not specify compensation for being wounded in action. 3. Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the Government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. 4. Title 10, U.S. Code, section 1413a, established the Combat-Relation Special Compensation (CRSC), to provide for the payment of the amount of money a military retiree would receive from the Department of Veterans Affairs (VA) for combat-related disabilities if it weren’t for the statutory prohibition for a military retiree to receive a VA disability pension. Payment is made by the Military Department, not the VA, and is tax free. There are two CRSC programs that began on 1 June 2003 and 1 January 2004 to offer compensation to combat-disabled retirees. Eligibility requirements are as follows: * CRSC I * retired with at least 20 years of Active Duty or 7200 Reserve Service Points * have a VA disability rating of 60-100% or 10% associated with a Purple * Heart * d drawing retirement pay and receiving VA disability pay * those who meet all of these CRSC I requirements are eligible to receive payment retroactive to 1 June 2003 or the date they are fully eligible * CRSC II * retired with at least 20 years of Active Duty or a 20-Year Retirement Letter and is at least age 60 * have a VA disability rating of 10% or higher * drawing retirement pay and receiving VA disability pay * those who meet all of these CRSC II requirements are eligible to receive payment retroactive to 1 January 2004 or the date they are fully eligible //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170015060 5 1