IN THE CASE OF: BOARD DATE: 24 May 2023 DOCKET NUMBER: AR20220008956 APPLICANT REQUESTS: to be awarded the Purple Heart for an injury in Vietnam. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs Benefits Letter * Statement in Support of Claim * 199 VA Rating Decision * Photograph * Statement FACTS: 1. The applicant did not file within the 3-year time frame 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 believes the paperwork from the field medic was destroyed during one of the time his compound was attacked. The medical field tent was destroyed in the assault and many lives were lost. In a separate statement, the applicant also states they did not have electronics at the time to send information. He does not remember the medic who treated him and whether he submitted the paperwork or not. When their compound was attacked, the medic building was burned; so, he probably is not the only one whose information was lost during that fatal night they were attacked. He remembers the medic bandaged him up and gave him a set of crutches to use for 3 weeks. He does not remember the exact date of this incident. 3. The applicant provides: a. Letter from the VA Regional Office, Vocational Rehabilitation & Employment, informing him that based upon his disabilities, it is not reasonably feasible for him to benefit from vocational rehabilitation at this time. The results of this determination will not affect his entitlement to receive other VA benefits. b. Two Statements in Support of Claim in which he asks the VA to consider service- connection for a right knee condition. He states this injury occurred in Vietnam. He also states that he had a total knee replacement. c. VA rating decision, 20 September 1999, that shows service connection for posterior cruciate ligament, meniscus injury with degenerative joint disease, right knee. 4. Review of the applicant’s service records shows: a. He was inducted into the Army of the United States on 17 October 1966, and he held military occupational specialty 64B, Heavy Vehicle Driver. b. His DA Form 20 (Enlisted Qualification Record) shows service in Vietnam, from 1 September 1967 to on or about 28 August 1968. He was assigned to 119th Transportation Company. c. He was honorably released from active duty on 29 August 1968, after having completed 1 year, 10 months, and 13 days of active service. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) does not show award of the Purple Heart. It shows he was awarded or authorized: * National Defense Service Medal * Vietnam Service Medal * Vietnam Campaign Medal * Sharpshooter Marksmanship Badge with Rifle Bar (M-14) * Expert Marksmanship Badge with Rifle Bar (M-16) * 2 overseas service bars 5. Nothing in several typical sources show he was injured or wounded as a result of hostile action or that he was awarded the Purple Heart: a. His name is not shown on the Vietnam casualty listing. This is a listing of Vietnam era casualties commonly used to verify entitlement to award of the Purple Heart. b. His available 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 generally the proper notification procedure for injuries at the time. c. Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not record any wounds sustained as a result of hostile action. d. 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, failed to reveal any orders for the Purple Heart pertaining to the applicant. e. His records do not contain contemporaneous medical records showing he was wounded as a result of hostile action or treatment for such injury. 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. A review of the applicant’s service records contains sufficient evidence to support he is eligible for awards not annotated on the applicant’s DD Form 214. These awards will be added to the applicant’s DD Form 214 as administrative corrections and will not be considered by Board: BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition and available military records the Board determined there is no medical record showing the applicant received wounds caused by enemy forces that required treatment by medical personnel. The burden of proof rest on the applicant and the applicant provided no evidence to support his claim for award of the Purple Heart. The Board agreed there was insufficient evidence that showed the applicant’s name on the casualty listing or notification to his family that he had been wounded. There is no medical record showing the applicant received wounds caused by enemy forces that required treatment by medical personnel. 2. Furthermore, the Board determined that no documentation or supporting statements indicated the applicant had 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 as specified in the criteria for award of the Purple Heart. 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. Based on this, the Board denied relief. 3. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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: Except for the correction addressed in Administrative Note(s) below, the Board found 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 NOTES: A review of the applicant’s records shows he is authorized additional awards not annotated on his DD Form 214 for the period ending 29 August 1968. As a result, amend his DD Form 214 by awarding him the: * Vietnam Counteroffensive Phase III -1 June 1967 – 19 January 1968 * TET Counteroffensive -30 January 1968 -1 April 1968 * Vietnam Counteroffensive Phase IV – 2 April 1968 - - 30 June 1968 * Republic of Vietnam Gallantry Cross with Palm Unit Citation Delete – Vietnam Service Medal Add- Vietnam Service Medal w/ 3 bronze stars 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 (AR) 600-8-22 (Military Awards), prescribes policies and procedures for military awards and decorations, to include the Purple Heart. 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 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 key issue that commanders must take into consideration 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 the sole justification for the award. Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows: * Injury caused by enemy bullet/shrapnel/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 3. 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. 4. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220008956 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1