MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 2 December 1998
         DOCKET NUMBER: AC97-11060

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Loren G. Harrell		Director
Mr. Kenneth Aucock		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. George D. Paxson		Member
Mr. John H. Kern		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records
         Exhibit B - Military Personnel Records (including advisory opinion,
         if any)

---

APPLICANT REQUESTS: In effect, the applicant requests award of the Purple Heart. In a previous application to this Board, he requested, in effect, physical disability retirement or separation

APPLICANT STATES: In effect, that he received light shrapnel wounds to his lower legs, neck and head wounds, while with the 16^th Infantry, and was hospitalized in Cu Chi. In his previous request to this Board, he stated that he was confined instead of being sent to a medical facility; and that the VA was refusing a valid claim.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant entered the Army on 3 December 1964, completed training as an infantryman and was reassigned to a cavalry unit in Germany. On
30 August 1965 he volunteered for duty in Vietnam, and in March 1966 was assigned to an infantry company of the 1^st Battalion, 16^th Infantry, as a rifleman. The applicant returned to the United States at Fort Ord, California in September 1967, and after a period of confinement at Fort Riley, Kansas, he was assigned to Fort Lewis, Washington in July 1969.

The applicant received nonjudicial punishment under the UCMJ on
8 February 1965 for dereliction of duty; on 26 January 1965 for failure to go to his place of duty; on 24 May 1965 for failure to go to his place of duty and for disobedience of a lawful order; on 30 September 1965 for absenting himself from his place of duty; on 7 August 1966 for misconduct; on 22 June 1967 for being in an off limits area; on 3 August 1967 for violating a security SOP; on
16 October 1969 for AWOL; and on 1 December 1969 for AWOL. The applicant’s DA Form 20 (Enlisted Qualification Record) shows, among other entries, that he was in confinement for 157 days from 23 October 1966 to 28 March 1967.

The applicant was arraigned, tried, and convicted by a summary court-martial on 31 August 1966 for AWOL; by a special court-martial on 23 October 1966 for disobedience of a lawful command from an officer and for disobedience of a lawful order from an NCO; and by a special court-martial on 28 April 1969 for AWOL.

On 21 March 1969 the applicant was referred for psychiatric evaluation prior to a special court martial. He was diagnosed as having a disturbance personality pattern manifested by immature impulsive behavior, conflict with authority figures, conscious attempts to alter facts so as to minimize anti-social acts such as drinking and fighting all which clearly began before coming into the Army. The examining physician stated that he had no disqualifying mental disability warranting his separation through medical channels.

On 13 December 1969 the applicant stated that there had been no change on his medical condition since his last separation examination.

The applicant was released from active duty on 14 December 1969 at Fort Lewis, Washington. He had 2 years, 11 months, and 10 days of service, and 762 days of lost time. His DD Form 214 shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal, and the Vietnam Campaign Medal. It does not show award of the Purple Heart or the Combat Infantryman Badge. The applicant’s DA Form 20 does not show that he was wounded in action, nor does it show that he was awarded the Purple Heart or the Combat Infantryman Badge.

On 4 December1967, in response to his original application to this Board in which he requested that his court-martial be reviewed and that in effect, he receive physical disability retirement or separation, he was informed that he had not provided any reason why his application should be considered and his application was administratively denied.

On 26 March 1968 in response to his request for the Purple Heart and the Combat Infantryman Badge, the applicant was requested to complete an enclosed application, and forward it and supporting documentation to this Board.

Army Regulation 600-8-22 provides that the Purple Heart is awarded for a wound sustained 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, and the medical treatment must have been made a matter of official record.

The aforementioned regulation also provides, in pertinent part, that the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry MOS There are basically three requirements for award of the CIB. The soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

1. The applicant’s medical records are unavailable. However, the applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation. He has submitted no probative medical evidence to the contrary.

2.       Since there is no evidence that the applicant's condition was not medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for medical retirement or separation.

3.       The applicant has not provided any evidence that he was wounded in action against an enemy of the United States. He is therefore not entitled to award of the Purple Heart.

4. The applicant was trained as an infantryman and was assigned to an infantry unit in Vietnam. Notwithstanding this information, he has not shown to the satisfaction of this Board that he was assigned to his infantry unit during such time as the unit engaged in active ground combat, and that he actively participated in such ground combat.

5. In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

___rvo___ __gdp___ __jhk___ DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director

---

INDEX

CASE ID	AC
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	YYYYMMDD
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.