DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 7937-19 
Ref: Signature Date 

Dear

This letter is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found that 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 a 15 November 2019 advisory opinion (AO) provided by the Navy Department Board of Decorations and Medals (NDBDM). The AO was provided to you on 26 November 2019, and you were given 30 days in which to submit a response.  When you did not provide a response, your case was submitted to the Board for consideration. 

You served in 	,	.You state that on 1 November 1968, you suffered a “severe blast injury” to your head from an enemy rocket or artillery round.  You stated that your injuries were examined but not documented in your medical record.  You further stated that you chose not to be medically evacuated (“medevac”), and after 48 hours you continued to perform your medical duties.
 
Within the Department of the Navy, to qualify for the Purple Heart Medal (PH), 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 PH. 

On 25 February 2019, Headquarters United States Marine Corps (HQMC) denied your entitlement to a PH.  HQMC noted that a review of all of your available records failed to reveal any documentation to substantiate your entitlement to the PH.  In a lengthy AO dated 15 November 2019, the NDBDM also opined, in part, that you were not entitled to the PH for the following reasons: 

“In summary, the evidence does not substantiate award of the PH in this case.  The official records establish the Petitioner’s military unit received a single enemy artillery round on 1 Nov 1968, but that no casualties resulted from this attack.  There is no official record of the Petitioner having been reported as a battle casualty.  The Petitioner’s military service and medical records contain no documentation that he was injured on 1 Nov 1968, or that he received any treatment by a medical officer on that date or the days following.  The Petitioner’s commanding officer was apparently aware of the facts surrounding the attack on 1 Nov 1968 and neither awarded the Petitioner the PH, nor nominated him for the PH.  A presumption of regularity attaches to these records and command actions.  Therefore, we are required to presume the Petitioner was not awarded the PH because there was no basis for the award.  The Petitioner has failed to submit evidence sufficient to overcome this presumption. The only materially relevant evidence he submitted was a 2018 statement from a fellow medical officer who was present in Vietnam on the date in question.  That statement asserts the fellow medical officer examined the Petitioner, but provided him no medical treatment.  The statement does not assert the Petitioner suffered a loss of consciousness on 1 Nov 1968, and the Petitioner’s own statement says he did not lose consciousness.  Therefore, even if the Petitioner did sustain an mTBI on 1 Nov 1968 -a fact not established by the evidence -the PH would not have been authorized according to the policies, standards, and practices in effect within the Navy and Marine Corps at that time.” 

The Board, in its review of the entire record and petition, considered your contentions that included what you specifically outlined in your petition for relief and in your original written PH request to the Office of the Chief of Naval Operations (Code DNS-35).  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 PH.  The Board concluded that there was no evidence in the record that you were injured under conditions for which the PH can be authorized, namely, that you received a wound resulting from enemy action, and that the wound necessitated treatment (not merely an examination) by a medical officer at the time of injury.  The Board also concurred with the AO that VA disability determinations after the fact have no bearing on awarding the PH, and that a diagnosis of mild traumatic brain injury (MTBI) long after a concussive incident does not justify the award of the PH.  More importantly, the change in the Department of the Navy regulations making certain concussions and/or MTBI eligible for the PH 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 PH 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 PH 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 PH 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 PH eligibility involving MTBI/concussion applying prior to September 11, 2001 and/or during the Vietnam era.  Accordingly, your 1968 MTBI/concussion falls outside the applicable eligibility period for such injuries and does not meet the modified PH eligibility criteria. 

The Board sincerely appreciates, respects, and commends you for your honorable and faithful service during Vietnam and your entire military career.  It is regretted that the circumstances of your case 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 this regard, 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. 

Sincerely,