Dear : 
 
This letter is in reference to your reconsideration request dated 17 December 2019.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved.  Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 
 
Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 16 January 2020.  The names and votes of the members of the panel will be furnished upon request.  Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board.  Documentary material considered by the Board consisted of your application and personal statements, together with all material submitted in support thereof, relevant portions of your service records, applicable statutes, regulations and policies, and an advisory opinion (AO) provided by the Navy Department Board of Decorations and Medals (NDBDM). 
 
You were discharged from the Marine Corps on 20 June 1969 with an honorable discharge at the completion of your required active duty service.  While serving with the   on 10 September 1967, you claim that you suffered a head wound while you were on a tank getting ammunition and the tank was hit by a  rocket that exploded and sent shrapnel all over.  You stated that your wounds were not life threatening so you returned to the battle.  You further stated that the corpsman who treated you was later killed and the medical report was lost or never documented.  You stated that a 2006 MRI noted the presence of metallic artifacts embedded in your scalp, and you also provided:  (a) a 2008 VA disability rating decision for head trauma, and (b) a 2013 VA disability rating decision for traumatic brain injury to support your claim. 
 
Within the Department of the Navy, to qualify for the Purple Heart Medal (PHM), the wound received has to be the direct or indirect result of enemy action, and such wound also required treatment by a medical officer at the time of injury.  Both criteria must be met to be awarded the PHM.  The term medical officer is defined by the Department of Defense as a physician of officer rank. 
 
On 28 June 2016, Headquarters United States Marine Corps (HQMC) denied your entitlement to a PHM.  HQMC noted that a review of all of your available records failed to reveal your entitlement to the PHM.  HQMC specifically noted that a wound not requiring treatment by a medical officer does not qualify for the PHM.  In an AO dated 21 July 2017, the NDBDM also opined, in part, that you were not entitled to the PHM for the following reasons: 
 
“No evidence was found in either the Petitioner’s military service record or his military medical record that could substantiate he was ever wounded in action, or that such a wound was treated by a medical officer.  Nor was any evidence found that the Petitioner was reported as a casualty.  He is not listed in the casualty database maintained by the Marine Corps History Division.  It must be presumed that if he was wounded in action to a severity meriting the PH, he would have at least been reported by his unit…The third party witness statements accompanying the petition do not establish a factual basis upon which the PH can be awarded.  The statements give various accounts of what occurred and some are in conflict…the accounts contain insufficient detail as to the nature of the injuries sustained and the treatment received.  Mr. O’s statement seems to be the earliest, dating from 1982 Several typewritten, unsigned, and undated versions of this statement are in the case file and the Petitioner’s service record Mr.O claims to have been on the same tank as the Petitioner on 10 Sep 1967 when the vehicle was struck by a rocket-propelled grenade.  He says the explosion threw both he and the Petitioner from the tank, but they both got up and ran back to their gun positions.  He mentions no injuries to himself or the Petitioner, nor any medical treatment.  Nor does he mention anyone else being there to assist either one of them.  Mr. O’s 1982 statement is not consistent with the 2015 statement by Mr. S given almost 33 years later.  Mr. O does not say whether he himself was awarded the PH for this incident, but he is not listed as a casualty in the database maintained by the Marine Corps History Division.  In summary, the witness statements are inconclusive due to lack of detail and inconsistency.” (emphasis added). 
 
The Board, in its review of the entire record and petition, considered your contentions that included what both you and your attorney specifically outlined in your current and former Board petitions for relief.  However, the Board unanimously determined, even after reviewing the evidence in the light most favorable to you, that you do not meet the qualifying criteria to receive the PHM.  The Board concluded that there was no evidence in the record that you were injured under conditions for which the PHM can be authorized, namely, that you received a wound resulting from enemy action, and that the wound necessitated treatment by a medical officer at the time of injury.  The Board also determined that VA disability determinations after the fact have no bearing on awarding the PHM, and that a diagnosis of mild traumatic brain injury (MTBI) long after a concussive incident does not justify the award of the PHM.  More importantly, the change in the Department of the Navy regulations making certain concussions and/or MTBI eligible for the PHM does not apply in your case. 
 
The Board observed that the Secretary of the Navy promulgated ALNAV 079/011 (“Department of the Navy Standards for Award of the Purple Heart”) on 9 December 2011.  The ALNAV defines a wound as an injury to any part of the body from an outside force or agent, and further states that wounds/injuries are the direct result of enemy action when the physical effects of an enemy weapon on the service member are the immediate cause of the wound/injury (e.g. being struck by projectiles, fragmentation, or blast from an enemy weapon or IED).  The ALNAV further states that MTBI and concussion are frequently used interchangeably; MTBI is a medical term defining the physical injury to the brain from a blow or blast, and concussion is the layman term describing impairment to brain function resulting from the injury.  The ALNAV also expanded the standards to allow award of the PHM in cases where no loss of consciousness occurred, but the persistent signs, symptoms, or clinical findings, or impaired brain functions, necessitated restriction from full duty for 48 hours or more.  Further, the symptoms must have manifested, and the medical officer disposition must have occurred, within seven days of the concussive event.  The ALNAV clearly stated that the revised PHM standards were effective immediately and may be retroactively applied for certain instances of MTBI/concussion suffered on or after September 11, 2001.  As a result, this revised guidance clarifying PHM eligibility for concussions only has retroactive applicability to the start of the Global War on Terror and is inapplicable in your case.  There have been no changes to PHM eligibility involving MTBI applying prior to September 11, 2001 and/or during the Vietnam era.  Accordingly, your alleged 1967 MTBI falls outside the applicable eligibility period for such injuries and does not meet the modified PHM eligibility criteria.  Additionally, the Board noted that Mr. O’s statement does not assert that you suffered a loss of consciousness on 10 September 1967, and your own statement says you did not lose consciousness. Therefore, even if you did sustain an MTBI on 10 September 1967 - the PHM would not have been authorized according to the policies, standards, and practices in effect within the Navy and Marine Corps at that time. 
 
The rules and regulations governing the PHM are clear and unambiguous.  They are not subject to liberal interpretation or consideration simply to achieve a particular result.  The Board’s determination is in no way intended to diminish the value of your service to this great country.  Nor is there any intent to deny that you currently suffer from a medical condition or injury, or are experiencing symptoms similar to those of MTBI.  The Board’s decision is their objective assessment of the evidence and the policies, standards, and practices related to awarding of the PHM, one of the most prestigious medals issued by the Department of Defense (DoD).  Such prestige is due to the medal’s association with being wounded in combat with the enemy, and to the integrity of the process by which it is awarded.  Preserving this prestige requires such awards must be based on verifiable facts.  The facts in your case do not justify the award.  The Board’s previous denial was neither arbitrary nor capricious, but was rather a correct and consistent application of DoD and Department of the Navy policy and standards, and in keeping with applicable legal precedent.  Awarding the PHM in your case would be inconsistent with the standards applied to all other service members. 
 
The Board sincerely appreciates, respects, and commends you for your honorable and faithful service during  and your entire military career.  It is regretted that the circumstances of your reconsideration petition are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon the submission of new matters, which will require you to complete and submit a new DD Form 149.  New matters are those not previously presented to or considered by the Board.  In the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 
 
It is important to keep in mind that a presumption of regularity attaches to all official records.  Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.