ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 APRIL 2019 DOCKET NUMBER: AR20190001998 APPLICANT REQUESTS: * award of the Purple Heart * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank/pay grade as sergeant first class (SFC)/E-7 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552). FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, 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: * he was presented with a Purple Heart in Vietnam in 1968 * he was sedated and didn't understand the officer was presenting him with this award * this incident happened during the Tet Offensive in 1968 * he was stationed at Quinn Yan, Vietnam, at that time * he was instructed to submit a request for award of the Purple Heart after talking to someone at the Pentagon * he was placed on the promotion list prior to being medically discharged * he actually saw the promotion orders * he transferred from Germany to Fort Dix, NJ, for a medical board discharge * he was discharged in January 1980 and he never received the promotion orders 3. He enlisted in the Regular Army on 29 April 1966. 4. Item 5 (Oversea Service) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows he was awarded overseas tour credit for service in Vietnam from 27 December 1966 through 26 December 1967 and from 22 July 1968 through 21 April 1969. 5. He was honorably released from active duty on 22 April 1969. 6. His available records contain no documentation of wounds or injuries incurred during his service in Vietnam as a result of hostile action. 7. His name is not shown on the Vietnam Casualty Roster. 8. 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, failed to reveal any orders for the applicant. 9. He enlisted in the Regular Army again on 22 September 1971. 10. He was promoted to staff sergeant (SSG)/E-6 effective 9 December 1977. 11. Item 5 of his DA Form 2-1 shows he was awarded overseas tour credit for service in Germany from 1 March 1973 through 6 January 1976 and from 6 December 1980 through 29 November 1981. 12. Item 27 (Remarks) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows a copy of his Personnel Qualification Record was forwarded to the U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison, IN, for Enlisted Selection Promotion Board consideration to SFC/E-7 on 28 October 1980. 13. His records do not contain orders promoting him to SFC/E-7. 14. U.S. Army Military Personnel Center Orders Number D212-5, dated 3 November 1981, retired him because of temporary physical disability effective 4 December 1981 and placed him on the Temporary Disability Retired List (TDRL) effective 5 December 1981. His retired grade is shown as SSG. 15. He retired by reason of physical disability effective 4 December 1981. His DD Form 214 shows his rank/pay grade as SSG/E-6. 16. His DA Form 3713 (Data for Retired Pay), dated 12 September 1983, shows he was removed from the TDRL and separated with entitlement to severance pay effective 30 September 1983 based on his final disability rating of 20 percent. His rank is shown as SSG. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. His record is absent evidence he was a promotion standing list at the time he was placed on the PDRL. His record is absent evidence showing he was injured by enemy forces during service in Vietnam, and he did not provide any witness statements, medical documentation, or unit casualty records, just to name a few examples of supporting documents, for the Board to consider. Based upon the preponderance of evidence, the Board determined there is insufficient evidence to grant relief. 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. ADMINISTRATIVE NOTE(S): not applicable. 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 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) provides that the Purple Heart is an entitlement and differs from all other awards. a. The Purple Heart is awarded to members of the Armed Forces of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, have been wounded, were killed, or who have died or may hereafter die of wounds received under any of the following circumstances: (1) in any action against an enemy of the United States; (2) 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; (3) 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 party; (4) as the result of an act of any such enemy of opposing Armed Forces; (5) as the result of an act of any hostile foreign force; (6) after 28 March 1973, as a result of an international terrorist attack against the United States or a foreign nation friendly to the United States, recognized as such an attack by the Secretary of the Army, or jointly by the Secretaries of the separate Armed Services concerned if persons from more than one service are wounded in the attack; (7) after 28 March 1973, as a result of military operations while serving outside the territory of the United States as part of a peacekeeping force; (8) service members who are killed or wounded in action by friendly fire; (9) a former prisoner of war who was wounded before 25 April 1962 while held as a prisoner of war (or while being taken captive); or (10) service members killed or wounded in attacks by foreign terrorist organizations. b. 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 Purple Heart 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. c. 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. d. Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows: * injury caused by enemy bullet, shrapnel, or other projectile created by enemy action * injury caused by enemy-placed trap or mine * injury caused by enemy-released chemical, biological, or nuclear agent * injury caused by vehicle or aircraft accident resulting from enemy fire * concussion injuries caused as a result of enemy-generated explosions * mild traumatic 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 e. Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: * frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951) * trench foot or immersion foot * heat stroke * food poisoning not caused by enemy agents * chemical, biological, or nuclear agents not released by the enemy * battle fatigue * disease not directly caused by enemy agents * accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action * self-inflicted wounds, except when in the heat of battle and not involving gross negligence * post-traumatic stress disorder * airborne (for example, parachute/jump) injuries not caused by enemy action * hearing loss and tinnitus (for example, ringing in the ears) * mild traumatic brain injury or concussions that do not either result in loss of consciousness or restriction from full duty for a period greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function * abrasions and lacerations (unless of a severity to be incapacitating) * bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer) * soft tissue injuries (for example, ligament, tendon, or muscle strains, sprains, and so forth) first degree burns 3. Title 10, U.S. Code, section 1372 (Grade on Retirement for Physical Disability: Members of Armed Forces), provides that unless entitled to a higher retired grade under some other provision of law, any member of an Armed Force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the TDRL under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: a. the grade or rank in which he is serving on the date when his name is placed on the TDRL or, if his name was not carried on that list, on the date when he is retired; b. the highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired; c. the permanent Regular or Reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination; or d. the temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190001998 4 1