ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 December 2019 DOCKET NUMBER: AR20180001198 APPLICANT REQUESTS: The applicant requests, in effect, a combat association classification for shrapnel that was found in his skull during a medical examination. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 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 (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 there is no listing of his wound. He never knew of the shrapnel as he was physically and mentally very busy, in addition to being dirty and sweaty, and having ringing in his ears. He was in 3 major battles during TET Offensive. There were rockets from the enemy hitting within feet of him and there were also anti-tank mines triggered close to him. He never knew the shrapnel penetrated into his skull when he was in heavy gunfights. Years later, he had an MRI before brain surgery, and showed images of what looked like a bullet. The Department of Veterans Affairs Hospital should have his scans/images. 3. A review of his service record shows: a. He was inducted in to the United States Army on 3 July 1967. b. His DA Form 20 (Enlisted Qualification Record) shows in: * Item 31 (Foreign Service), he served in the Republic of Vietnam from on or about 9 January 1968 to on or about 6 January 1969 * Item 40 (Wounds), no entry that shows he was wounded c. He was honorably released from active duty on 16 May 1969, to attend school. His DD Form 214 shows he was credited with the completion of 1 years, 10 months, and 14 days of total active service. d. There is no evidence in his service records that shows he was wounded as a result of hostile action, that he required medical treatment by medical personnel or that such medical treatment must have been made a matter of official record e. His name is not shown on the Vietnam casualty roster, a list of most of those who were wounded in Vietnam. f. His records do not contain an official Army notification or a Western Union telegram notifying his next of kin of an injury. g. His contemporaneous service medical records are not available for review with this case. 4. The applicant provided: a. Medical records for an exam that was conducted on the applicant on 5 March 2002. The records show foreign bodies that may have been postoperative, or may have represented bullet fragments or shrapnel. b. A self-authored letter that states all the medical issues and problems he has had. 15 years ago he had a large tumor removed from his head. It was during that surgery the shrapnel was found. 5. Title 26, U.S. Code, section 104, states that for purposes of this subsection, the term "combat-related injury" means personal injury or sickness that is incurred as a direct result of armed conflict, while engaged in extra hazardous service, or under conditions simulating war, or which is caused by an instrumentality of war. 6. By regulation (AR 600-200), in effect at the time, a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization would be entered in item 40 (wounds) of the DA Form 20. The date the wound or injury occurred would also be placed in item 40. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. One potential outcome raised was to grant relief based upon the fact that one board member found that there was no other explanation for the found shrapnel. However, the Board concluded that with no medical record or other corroborating evidence showing that the found shrapnel was related to combat-related events, the Board concluded there was insufficient evidence to show that the applicant’s injury was combat-related. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X : : 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. Expired certificate X CHAIRPERSON Signed by: 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 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 600-200 (Enlisted Personnel Management System), chapter 9, of the version in effect at the time, stated a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization would be entered in item 40 (wounds) of the DA Form 20. This regulation further stated that the date the wound or injury occurred would also be placed in item 40. 3. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (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/her office, grade, rank, or rating. It states: a. A disability may be considered to be a direct result of armed conflict if it was incurred while the Soldier was engaged in armed conflict or in an operation or incident involving armed conflict or the likelihood of armed conflict; if a direct causal relationship exists between the armed conflict or the incident or operation and the disability; or if the disability which is unfitting was caused by an instrumentality of war and was incurred in the line of duty during a period of war. A determination that a disability was caused by an instrumentality of war and incurred in the line of duty is appropriate only when it is also determined that the disability so incurred in itself renders the member physically unfit and was incurred during one of the periods of war as defined by law. b. The term "instrumentality of war" refers to a device primarily designed for military service and intended for use in such service at the time of the occurrence of the injury. It may also be a device not designed primarily for military service if use of or occurrence involving such a device subjects the individual to a hazard peculiar to military service. This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits. c. In paragraph 4-19j, that in making a determination whether a disability should be classified as being incurred during an armed conflict or due to an instrumentality of war, the following must be considered: (1) The disability resulted from injury or disease received in the line of duty as a direct result of armed conflict and which itself renders the Soldier unfit. A disability may be considered a direct result of armed conflict if: (a) the disability was incurred while the Soldier was engaged in armed conflict or in an operation or incident involving armed conflict or the likelihood of armed conflict, while the Soldier was interned as a prisoner of war or detained against his will in the custody of a hostile or belligerent force, or while the Soldier was escaping or attempting to escape from such prisoner of war or detained status; and (b) a direct causal relationship exists between the armed conflict or the incident or operation and the disability. (2) the disability is unfitting, was caused by an instrumentality of war, and was incurred in the line of duty during a period of war as defined by law. NOTHING FOLLOWS