IN THE CASE OF: BOARD DATE: 24 May 2023 DOCKET NUMBER: AR20220010069 APPLICANT REQUESTS: reconsideration of his previous request for entitlement to the award of the Purple Heart (PH). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 15 July 2022 * Self-authored Statement, undated * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), 1 July 1970 * DD Form 215 (Correction to DD Form 214), 28 April 1972 * DD Form 215, 9 June 1999 * six pages of Veterans Administration medical progress notes, 20 February 2020 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 AR19990 on 20 May 1999. 2. The applicant states, in effect: a. Since 1969 he has had an injury from his service in connection with engaging Ho Chi Minh's hand-picked regiment in the Central Highlands of the Cambodian South Vietnamese borders. b. He was examined by a doctor at the VA in New Jersey. All of his previous examinations were by technicians. His comprehensive exams found hearing loss and he was issued hearing aids. The doctor informed him he blew out his ear drum and he has a VA service connected rating of 10% for tinnitus due to his combat experience. c. In Vietnam, he finished his tour in the rear as the medical unit issued a permanent profile to him. He was not returned to duty as a crew-chief on a 42 inch mortarman in the 4th Infantry Division. d. He was called to engage the enemy when a company of infantrymen walked into an ambush and took many casualties. As he engaged the enemy a round got stuck in the tube of his mortar. His crew took steps to get it to go off but nothing worked. The last step was to dislodge the tube and gently move it. He stood at the front of the mortar to catch the round with his hands but the round went off, knocking him to the ground. e. He was medically evacuated to a field hospital. He was disoriented, deaf with ringing in both ears, and his left eardrum was taken out. f. He was engaged with the enemy and has lived his entire life with hearing loss and tinnitus. He also has been service connected for post-traumatic stress disorder (PTSD) at 100%, coronary artery disease at 10% and diabetes at 10%. g. He provides medical progress notes, which will be discussed by the Army Review Boards Agency, Medical and Behavior Health Staff. 3. A review of the applicant's available service records shows: a. On 2 July 1968, he was inducted into the Army of the United States. b. His DA Form 20 shows: * he served in Vietnam from 12 December 1968 to 11 December 1969 * no record of wounds in item 40 * he was awarded or authorized: * National Defense Service Medal (NDSM) * Vietnam Service Medal (VSM) * Combat Infantryman Badge (CIB) * Republic of Vietnam Campaign Medal (VCM) with Device (1960) * Army Good Conduct Medal (AGCM) c. On 1 July 1970 he was honorably released from active duty. His DD Form 214 shows he was awarded or authorized: * NDSM * two overseas bars * VCM with Device (1960) * CIB * AGCM * Expert Marksmanship Qualification Badge with Rifle Bar (M-14) d. On 28 April 1972, he was issued a DD Form 215, showing: * his military occupational specialty as 71B20 (Clerk Typist) * the Army Commendation Medal was awarded to him e. His records contain or he previously provided, a VA Rating Decision showing he was granted disability benefits for PTSD and tinnitus in 1997. f. On 20 May 1999 and in ABCMR Docket Number AR19990 he Board granted part of his request for awards authorized while he was in service but denied that part of his application requesting entitlement to the PH. The Board found there was no evidence showing he was wounded or treated for wounds due to hostile action in Vietnam. g. On 9 June 1999, he was issued a second DD Form 215, with the first DD Form 215 being voided. He was awarded additional medals and decorations to his DD Form 214, but this correction did not include the PH. h. His records are void of orders showing he was awarded the PH. i. 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 PH pertaining to the applicant. j. The applicant's name is not shown on the Department of the Army Office of the Adjutant General Casualty Division Casualty Reference Name Listing for the period 1 January 1961 through 30 June 1973, a battle and non-battle listing of Soldiers who were killed, wounded, sick, captured, or missing during their service in Vietnam. 4. Based on the applicant’s condition(s)/contention(s) the Army Review Boards Agency medical staff provided a medical review for the Board members. 5. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant has again applied to the ABCMR requesting the awarding of a Purple Heart for PTSD and hearing low with tinnitus from his service in Vietnam. c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 shows he entered the regular Army on 2 July 1968 and received an honorable discharge on 1 July 1970 under the provisions provided AR 635-200, Personnel Management – Enlisted Personnel (1 June 1967). The authority lists the reason as ETS (expiration of term of service) with the separation program number (SPN) 201 denoting “Enlisted Personnel - Expiration of term of service.” The applicant was discharged with a reenlistment code of 1 – Fully qualified for enlistment. d. Paragraph 2-8 of AR 600-8-22, Military Awards (11 December 2006), lists the criteria for the awarding of the Purple Heart. Paragraph 2b lists the circumstances under which the injury is eligible for a Purple Heart (enemy action, friendly fire, peace keeping, etc.). Paragraph 2e states the wound and medical care requirements for the award: “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 above. A physical lesion is not required, however, the wound for which the award is made must have required treatment by medical personnel and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.” e. Paragraph 2-8k(3) of 600-8-22 succinctly lists the requirements for this award: Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire (as defined in paragraph b(8) above) the wound or injury must have required treatment by medical officials; and the records of medical treatment must have been made a matter of official Army records. f. No contemporaneous medical documentation was submitted with the application. Submitted medical documentation contains a 30 January 2020 audiology evaluation showing the applicant has continued tinnitus and been diagnosed with bilateral sensorineural hearing loss. Review of his records in JLV show he has been awarded numerous VA service-connected disability ratings, including ratings for tinnitus, hearing loss, and PTSD. However, paragraph 2-8h(9) of 600-8-22 states that PTSD is an injury which clearly does not justify the awarding of a Purple Heart. g. It is the opinion of the ARBA Medical Advisor there is no probative evidence to support the awarding of a Purple Heart. 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, available military records and medical review, the Board concurred with the advising official finding no probative evidence to support the awarding of a Purple Heart. 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 new 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. Based on this, the Board denied relief. 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. 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: 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 to amend the decision of the ABCMR set forth in Docket Number AR1999015506 on 20 May 1999. 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 1 July 1970. As a result, amend his DD Form 214 by adding: * Vietnam Counteroffensive Phase VI * Republic of Vietnam Gallantry Cross with Palm Unit Citation REFERENCES: 1. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. It provides that the PH is awarded for a wound sustained 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 a medical officer, and the medical treatment must have been made a matter of official record. The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather, he or she is entitled to it upon meeting specific criteria. A PH is authorized for the first wound suffered under conditions indicated above; an oak leaf cluster is awarded to be worn on the medal or ribbon for each subsequent award. Not 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. 2. U.S. Army Vietnam (USARV) Regulation 672-5-1 (Decorations and Awards), prescribed policies, responsibilities, and criteria for awards in order to insure prompt and proper recognition of individuals. The regulation states: a. The PH may be awarded to U.S. personnel who are wounded or killed in action as a direct result of enemy action. b. A wound for which the award is made must have required treatment by a medical officer and records of medical treatment for wounds or injuries received must have been made a matter of official record. c. Authority to award the PH was delegated to hospital commanders. Further, it directed that all personnel treated and released within 24 hours would be awarded the PH 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. 3. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. It provides that the Purple Heart is awarded for a wound sustained 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 a medical officer, and the medical treatment must have been made a matter of official record. a. Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows: (1) Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action. (2) Injury caused by enemy-placed trap or mine. (3) Injury caused by enemy-released chemical, biological, or nuclear agent. (4) Injury caused by vehicle or aircraft accident resulting from enemy fire. (5) Concussion injuries caused as a result of enemy-generated explosions. (6) 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. Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: (1) Frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951). (2) Trench foot or immersion foot. (3) Heat stroke. (4) Food poisoning not caused by enemy agents. (5) Chemical, biological, or nuclear agents not released by the enemy. (6) Battle fatigue. (7) Disease not directly caused by enemy agents. (8) Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action. (9) Self-inflicted wounds, except when in the heat of battle and not involving gross negligence. (10) Post traumatic stress disorders. (11) Airborne (for example, parachute/jump) injuries not caused by enemy action. (12) Hearing loss and tinnitus (for example: ringing in the ears). (13) 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. (14) Abrasions and lacerations (unless of a severity to be incapacitating). (15) Bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer) (16) Soft tissue injuries (for example, ligament, tendon or muscle strains, sprains, and so forth). (17) First degree burns. 4. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury (TBI), sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 5. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220010069 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1