ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 October 2019 DOCKET NUMBER: AR20180000603 APPLICANT REQUESTS: reconsideration of his previous request to be awarded the Purple Heart for hearing loss and traumatic brain injury. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Witness Statements (6) * Congressional Response * Article (Army Clarifies Purple Heart Rules for Soldiers), dated 17 March 2011 * Statement in Support of Appeal for Increase of Current Percentage Award * Department of Veterans Affairs (VA) Benefits Letter, dated 19 May 2017) * VA Rating Decision, dated 15 August 2017 * New Article, dated 18 June 1969 * Privacy Act Release Form 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 AC85-10336 on 18 November 1987. 2. The applicant states he believes he should be awarded the Purple Heart for injuries received while serving in the Infantry in Vietnam on 15 April 1969 due to incoming artillery or mortar explosion within very close proximity to the applicant’s position. As a result the applicant received hearing loss and traumatic brain injury with bleeding ears after an enemy explosion device was delivered by aerial bombard. 3. The applicant provides: a. An email dated 26 October 2017 from a Congressional Representative. As part of the email, a witness statement was included from XX. The witness states he was the platoon leader for the applicant in early 1969. The applicant and XX. shared a fighting position. A rocket hit just a few feet from the fighting position shared by the applicant and XX. A Soldier went to check on the applicant and XX. and stated they could not hear. The crater left by the rocket was very impressive. b. An article explaining that commanders have sometimes wrongly denied the Purple Heart to Soldiers who suffered battlefield concussions. It states the Army is planning to prioritize appeals from brain-injured Soldiers who feel they should not have been turned down for the medal. c. Statement in support of appeal for increase of current percentage award made by the applicant’s spouse. She states another Soldier, XX, felt so bad the Army had not awarded the applicant the Purple Heart he sent the applicant his as a token of respect. She states the applicant is bitter about not getting his Purple Heart and the VA not acknowledging his hearing loss which happened in Vietnam. d. VA Benefits Letter, dated 19 May 2017, which adjusted his compensation rating for traumatic brain injury, claimed as concussion. In the same letter, the issue of compensation for bleeding/weeping ears was deferred for VA examination. e. VA Rating Decision, dated 15 August 2017, in which an evaluation of the applicant’s service-connected bilateral hearing increased his rating to 10 percent. The effective date of the grant was 8 March 2017, which is the date his most recent audio examination. That date is the earliest date it is factually ascertainable an increase in his hearing disability has occurred. The issue of entitlement to an evaluation greater than 0 percent for hearing loss prior to 8 March 2017 remains under appeal. f. New article, dated 18 June 1969, which describes an eight hour battle involving the applicant’s company (Company A, 2nd Battalion, 39th Infantry Division (A Co, 2/39)). A Co, 2/39 participated in a 48-hour airmobile operation. g. A witness statement from XX., dated 20 March 2010, which states he was the applicant’s platoon leader and was the applicant’s immediate superior officer. The night the applicant was injured it was a close call for him as well, so the incident is firmly etched in his memory. It occurred in April 1969. An enemy rocket launched at their battalion base camp landed very close to a fighting position occupied by the applicant and XX. Neither the applicant nor XX. sustained direct physical wound from shrapnel nor did debris, however their proximity to the explosion and the resulting concussion caused their ears to bleed and they sustain an immediate hearing loss. For several days after the attack, the applicant and XX. reported severe headaches and both had fluids dripping from their ears. The edge of the crater made by the rocket explosion was less than 20 feet from fighting position of the applicant and XX. h. A witness statement from XX., dated 10 December 2009, which states he and the applicant were both infantry Soldiers in the same unit. He remembers the summer of 1969 in Mekong Delta when enemy shot toward Fire Base Schroeder, where they were stationed, and there was a loud explosion. He knew the applicant suffered some hearing loss or damage. The applicant complained about his headaches and some type of pink fluid draining from his ears. He knew he had been treated by their medic (doc) for the headaches and his ears. i. A witness statement from XX. (not dated), in which he states he served with the applicant from March to August 1969. He was the applicant’s immediate supervisor and, at times, his acting platoon leader. He further states his platoon’s area of operation was in the Delta. Their platoon faced death and injury daily. The applicant was often faced with life and death moments. He references the news article described in paragraph 3f above. He states as a result of what the applicant witnessed his perception of reality is different, the war has tormented his soul, and he has a love/hate relationship with war. It is his personal and professional opinion the applicant suffers from post-traumatic stress disorder. He is a college graduate, trained in theology, and located in ministry for 34 years. He also took graduate level course in counseling and has worked for five years as a licensed Hospice Chaplain. j. A witness statement from XX. (not dated), in which he states he served with the applicant in Vietnam in 1969. They shared a bunker. In April 1969, they were in their bunker and all of the sudden there was a loud, earth-shaking blast close to their bunker that bounced them around inside of it. There were under attack. For 2-3 days after that night the applicant had seepage from his ears. The medic gave him aspirin to ease the ache and pain. The applicant would not go on sick call. He said he would be ok. For days, they had to repeat words; this went on for a few weeks. After a few weeks passed, XX. and the applicant were on patrol when XX. pulled out a grenade and the handle popped off which would detonate it. They ran, but the concussion blew the applicant back and he lost his helmet and his hearing again for a while. Again, he would not go on sick call. k. A witness statement from H.F., dated 25 January 2013, in which he states he and the applicant were assigned to the same unit and the applicant was right by him daily in the same outfit. On or about the night of 15 April 1969, their unit came under intense mortar attack. The enemy shot something real big into the area which landed right in front of the fighting position of the applicant, only a few feet away from him. It shook the whole area and was unbelievably loud. It left a huge crater. The applicant complained of his hearing and his head hurting. The applicant had fluid coming out of his ears. The medic said no doctor was available because they were busy with other wounded by shrapnel and the like. The medic said he probably had a nasty concussion causing the problems and most likely injury to his ears. He remembers because as the radiotelephone operator he was the one who called over the radio for the applicant to get into the aid station. j. A privacy act release form to a Congressional Representative’s office requesting assistance for the award of the Purple Heart for combat injuries sustained in Vietnam. 4. A review of the applicant’s service record shows: a. On 11 September 1968, he was inducted in the Army of the United States. He enlisted in the U.S. Army Reserve (USAR) on 15 November 1979 and reenlisted in the USAR on 15 November 1980 and 19 August 1983. b. He served in Vietnam from 31 March 1969 to 27 August 1969. c. DA Form 20 (Enlisted Qualification Record), item 40 (Wounds) does not show a combat wound or injury. d. SF Form 88 (Report of Medical Examination) (not dated) and SF Form 89, (Report of Medical Histroy), dated 16 June 1970, were both prepared for separation from active service. SF Form 88, item 22 (Ears-general) and item 23 (Drums (Perforation)), the examining physician marked “Normal.” SF Form 89, item 17 (Statement of examinee’s present health in own words), the applicant stated “Good.” Item 20 (Have you ever had or have you now) he marked “No” for “frequent or severe headaches, ear, nose or throat trouble, running ears, or hearing loss.” Item 33 (Have you ever had any illness or injury other than those already noted?), he marked “No.” e. On 6 July 1970, he was discharged from active duty under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 5 (Separation for the Convenience of the Government - School Release) and issued an honorable discharge discharge. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) reflects he completed 1 year, 9 months, and 26 days of active service. It also shows he was awarded or was authorized the: * National Defense Service Medal * Vietnam Service Medal * Vietnam Campaign Medal * Army Commendation Medal * Bronze Star Medal * Air Medal f. On 4 January 1988, DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), was issued correcting DD Form 214 with the separation date of 6 July 1970, by adding the Combat Infantryman Badge (CIB). g. On 15 November 1979, SF Form 88 and SF Form 93 (Report of Medical History) were completed as part of his entry into the USAR. SF Form 88, item 22 (Ears-general) and item 23 (Drums (Perforation)), the examining physician marked “Normal.” Item 74 (Summary of defects and diagnoses), the examining physician states “#71 (Audiometer) Def. hearing”, but offers no further information. Item 77 (Examinee), the examining physician marks “is qualified for enlistment.” SF Form 89, item 8 (Statement of examinee’s present health and medications currently used in own words (follow by description of past history if complaint exists)), the applicant stated “I am in good health. No medications.” Item 11 (Have you ever had or have you now) he marked “No” for “frequent or severe headaches, ear, nose or throat trouble, or hearing loss.” Item 20 (Have you ever had any illness or injury other than those already noted?), he marked “No.” h. On 6 January 1984, VA Form 10-2464 (Summary Report of Examination for Loss of Organic Hearing Acuity) was prepared. The examination was conducted on 21 September 1983. In the remarks section, the Chief, VA Audiology Speech Pathology Clinic noted the applicant was seen for an Agent Orange examination. He further noted the applicant’s hearing was broadly within normal limits and a thorough audiometric exam was not undertaken. i. On 18 August 1986, the applicant was honorably discharged from the Ready Reserve under the provisions of AR 135-178 (Army National Guard and Army Reserve – Separation of Enlisted Personnel). j. On 9 February 1984, VA Form 21-6796 (Rating Decision) was issued. It states the applicant filed a claim for service connection for skin rash, hearing loss, hip conditions, and exposure to Agent Orange. Findings on the Agent Orange examination were a history of mild high frequency hearing loss, and a gunshot wound of the right chest. The applicant complained of gritting in the right hips since prior to service. He has submitted lay statements regarding his disabilities from people who served with him as well as from relatives and his own statement. He has not submitted medical evidence to show treatments for the disabilities since discharged. There were also barely visible erythematous macular areas on the neck. Based on the evidence of record, service connection cannot be approved. k. On 18 November 1987, the ABCMR issued a memorandum of consideration regarding the applicant’s request for correction of his military record for award of the CIB, the Purple Heart, and correction of his records to show treatment for hearing loss as a result of exposure to defoliants and a skin rash. The Board denied his request because it was not filed within the time required and it was not in the interest of justice to excuse the applicant’s failure to do so. A medical evaluation, dated 23 June 1987, accompanying the ABCMR decision, found the applicant was medically fit for retention or appropriate separation at the time and retroactive alteration of the medical record is not indicated. l. On 2 September 1992, the ABCMR administratively closed the applicant’s request for reconsideration of his application for correction of his military records wherein he requested, in part, an award of the Purple Heart for hearing loss he contended he incurred as the result of an explosion while serving in Vietnam. The Board found there was no basis for resubmitting his application. An advisory opinion, dated 12 March 1991, states after reviewing the application to ABCMR, his official military personnel file, medical records, and the retired organizational records the following conclusions were made: * there are no military or medical records concerning any wound/injuries to the applicant’s ears in June or July 1969 * the applicant was not listed on the Roster of Army Casualties for Vietnam War * search of the retired organizational records for A Co, 2/39 show the applicant was promoted and reassigned * in the absence of documented medical records the applicant is not eligible for the Purple Heart * no error or injustice can be documented m. On 20 December 2011, Case Management Division, ABCMR, was administratively closed after the staff of the ABCMR reviewed his request for reconsideration and determined it was not received within one year of the ABCMR’s original decision on 18 November 1987. 5. There is no evidence found in the applicant's military records indicating he was injured or wounded as a result of hostile action. Nothing in several typical sources shows he was wounded or injured as a result of hostile action. a. His medical records, which would have listed any injuries and treatment, are not available for review with this case. The available medical records consist of a separation and subsequent reentry examination wherein he listed having a scar from an appendicitis, but was “in good health.” He further answered in the negative when asked if he ever had any illness or injury other than those already noted in the previous portion of the examination. b. Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not show a combat wound or injury. c. His personnel records do not contain an official Army message or a Western Union telegram notifying his next of kin of an injury or wound sustained in action. This was the proper notification procedure for injuries at the time. d. His name is not shown on The Adjutant General's Office Casualty Division Casualty Reference Name Listing, a list of Vietnam era casualties commonly used to verify entitlement to award of the Purple Heart. e. A review of the Awards and Decorations Computer Assisted Retrieval System maintained by the U.S. Army Human Resources Command, an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders for the Purple Heart pertaining to the applicant. 6. By regulation (AR 600-8-22), the criteria for an award of 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 personnel * the medical treatment must have been made a matter of official record 7. By regulation (AR 600-200), a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization should be entered into item 40 (Wounds) of the DA Form 20 (Enlisted Qualification Record). BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. Additionally, Board member 3 (BS) previously reviewed and voted on this case and recommended (Deny). Therefore, for this review, Board Member 3 abstained from discussion and voting. 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. In events involving TBI and other similar injuries, the applicant’s record must show that the 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. After reviewing the application and all supporting documents, the Board found insufficient medical evidence to meet the regulatory standard for the Purple Heart and thus recommended denying the request. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING 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. Executive Order 11016 (Authorizing Award of the Purple Heart), in effect at the time, prescribes the criteria for award of the Purple Heart. a. Paragraph 1 states award of the Purple Heart to any member of an armed force who has been wounded: * in any action against an enemy of the United States * in any action with an opposing armed force of a foreign country in which the armed forces of the United States are or have been engaged * while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent part * as a result of an act of any such enemy or opposing armed force * as the result of an act of any hostile foreign force b. Paragraph 3 states a wound for which the award is made must have required treatment by a medical officer. 3. Army Regulation 600-200 (Enlisted Personnel Management System), paragraph 9- 53, in effect at the time, states in item 40 of DA Form 20 (Enlisted Qualification Record) enter a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization. This regulation further states the date wounded or injured should be entered as well. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20180000603 7 1