ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 13 August 2020 DOCKET NUMBER: AR20200000399 APPLICANT REQUESTS: * to be awarded the Purple Heart * compensation for his injuries APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * claim from 1970 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 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 did not receive the Purple Heart for wounds he received in the Republic of Vietnam (RVN). He came close to losing his life on several occasions while serving our country in RVN. He feels he is entitled to the Purple Heart Medal and compensation. He was treated for shrapnel wounds to the chest and leg. He was not aware a claim had been sent in. He would like to receive compensation for his injuries and be presented with a Purple Heart Medal. He was not aware a claim had been filed until they ran across the document enclosed for the Board's consideration. 3. The applicant’s available service records contain the following documents for the Board's consideration: a. A DD Form 47 (Record of Induction), which shows the applicant was inducted into the Regular Army on 26 October 1967. b. General Orders Number 5387, published by Headquarters, 25th Infantry Division, dated 27 July 1968, which shows he was awarded the Army Commendation Medal for Heroism. c. A DA Form 20 (Enlisted Qualification Record), which shows: * in item 21 (Foreign Service) he was in RVN from 16 April 1968 through 13 April 1969 * in item 40 (Wounds) he had shrapnel wounds left leg and left waist in October 1968 * item 38 (Record of Assignments) he was rated excellent or good in conduct and efficiency throughout his service * item 41 (Awards and Decorations) he received the National Defense Service Medal, Vietnam Service Medal, Combat Infantryman Badge, Army Commendation Medal with V device, Republic of Vietnam Campaign Medal with 1960 device, two Overseas Service Bars d. A document dated 6 January 1970 which requests complete medical records for the applicant concerning his shrapnel wounds treated at the 25th Infantry Division Aide Station while in Vietnam. e. A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), which shows : * he was inducted into the Army on 26 October 1967 * he was discharged on 24 October 1969 * he had 1 year, 11 months, and 29 days of service * he served in Vietnam for 11 months, and 28 days * he received the following awards: * National Defense Service Medal * Vietnam Service Medal w/1 Campaign Star * Combat Infantryman's Badge * American Campaign Medal * Vietnam Campaign Medal w/Device 60 * 2 Overseas Bars * Marksmanship Badge w/Rifle Bar g. The applicant's service records are void of any disciplinary actions. 4. The applicant provides the claim document from 1970, which was present in his service record. 5. Review of The Adjutant General's Office, Casualty Division's Vietnam casualty listing does not include the applicant's name. 6. A review of the Awards and Decorations Computer Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the U.S. Army Human Resources Command, failed to reveal any orders that show the applicant was awarded the Purple Heart. 7. Though the applicant did not request it, a review of his records shows he never received the Army Good Conduct Medal (AGCM). The applicant's DA Form 20 shows he was rated Excellence and Good in Conduct and Efficiency. His record is void of disciplinary actions. 8. The applicant’s service record is void of medical documentation regarding a medical discharge or the results of the claim for medical compensation from the VA. 9. The applicant’s DD Form 214 indicates that the applicant’s reason for discharge was “Expiration of Term of Service” (ETS) and he was discharged on 24 October 1969. 10. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 9. A VA finding of service connection does not necessarily result in a military medical disability rating. The VA operates under different laws and regulations than the Department of Defense (DOD). In essence, the VA will compensate for disabilities felt to be unsuiting. The DOD, however, only compensates for conditions it determines to be unfitting. Indications of an unfitting condition while on active duty are evidenced by: 1) a permanent physical profile for physical or psychological impairment; 2) a diagnosis of a medical or psychiatric condition that failed medical retention standards IAW AR 40- 501, Chapter 3; 3) a diagnosis of a disabling medical or psychiatric condition that renders an applicant unable to perform the duties required of his/her MOS or military grade; and 4) medical examination that warranted entry into the disability evaluation system. 10. See applicable references below. BOARD DISCUSSION: In addition to the administrative notes of the analyst of record (found below the signature block) and after consideration of the complete evidentiary record, the Board found that partial relief was warranted. 1. Regarding award of the Purple Heart Medal, the Board found sufficient evidence in the record that he was wounded by hostile fire in October 1968. The Board found the record, when viewed in its totality, is sufficient to reasonably conclude the applicant was wounded as a result of hostile action and received medical treatment for his wound. 2. Regarding the applicant’s request for compensation for his wounds, the Board found insufficient evidence that he is entitled to military medical disability separation pay or military medical retirement. The applicant’s DD form 214 lists the applicant’s reason for discharge as “Expiration of Term of Service” (ETS), therefore indicating no medical discharge/medical separation pay warranted from Active Service. However, per law, the VA may provide post-service compensation or medical treatment to military service members for service-related injuries/conditions. The applicant may consider consulting the VA for possible compensation and medical treatment. 3. As the Board reviewed the record, it determined that there is sufficient evidence that the applicant met the criteria for award of the Army Good Conduct Medal. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: In addition to the administrative notes of the analyst of record (found below the signature block), the Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. 1. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. awarding him the Army Good Conduct Medal (AGCM) (1st Award) for the period 26 October 1967 to 24 October 1969, and b. 2. correcting his DD Form 214 with effective date 24 October 1969 by amending item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) as follows: (1) add Purple Heart, (2) add the AGCM 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to compensation for his injuries. 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 NOTES: 1. Reference the enclosed request for correction of military records, correct the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending on 24 October 1969 by a. deleting the Vietnam Service Medal w 1 Bronze Service Star b. adding the following awards: * Vietnam Service Medal with 3 Bronze Service Stars * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation 2. The following documents are sufficient to justify correction of the DD Form 214 without action by the Board. * General Order Number 5, 1973 * General Order Number 51, 1971 * DA Form 20 (Enlisted Qualification Record) which shows Vietnam Counter Offensive, Phase IV; Vietnam Counteroffensive, Phase V; Vietnam Counteroffensive, Phase VI; and Tet 69 Counteroffensive * DD Form 214 ? 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 (AR) 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained while in action against an 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. a. Examples of enemy-related injuries which clearly justify the Purple Heart: * 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 b. A Purple Heart is authorized for the first wound suffered under conditions indicated above; for each subsequent award an oak leaf cluster will be awarded to be worn on the medal or ribbon. No more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent. 3. U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) stated the authority to award the Purple Heart was delegated to hospital commanders. It directed that all personnel treated and released within 24 hours would be awarded the Purple Heart by the organization to which the individual was assigned. Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam would be awarded the Purple Heart directly by the hospital commander rendering treatment. 4. Army Regulation 672-5-1 (Awards), in effect at the time, states the AGCM was awarded for each 3-year period of continuous enlisted active Federal military service completed on or after 27 August 1940 and for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year. 5. 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 office, grade, rank, or rating. It provides for medical evaluation boards (MEB), 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 in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). 6. Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). 7. Title 38, USC, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 8. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. ABCMR Record of Proceedings (cont) AR20200000399 5