PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 4 November 1998
         DOCKET NUMBER: AC97-11689


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

Mr. Loren G. Harrell		Director
Mr. Hubert S. Shaw, Jr.		Analyst

The following members, a quorum, were present:

Mr. James E. Vick		Chairperson
Mr. Luther L. Santiful		Member
Mr. Thomas N. Kuhn		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests correction of his records to show an honorable discharge; award of the Prisoner of War (POW) Medal, possible award of the Medal of Honor, “return of Purple Heart” and any other awards to which he is entitled; and, in effect, correction of his records to show possible toxic chemical exposure and a disability discharge.

3. The applicant states that, in effect, he is entitled to these awards. He also states that he was discharged ill from the military service.

4. The applicant’s military records show that he entered active duty on 29 August 1969 and completed training as a medical specialist. He served in Vietnam from 2 September 1970 to 12 February 1971 and then served in a military hospital in Japan until he was discharged on 26 September 1971.

5. The applicant’s DD Form 214 (Report of Transfer or Discharge) shows he was discharged under honorable conditions (a general discharge) based on the provisions of Army Regulation 635-212 for unsuitability.

6. The applicant’s DD Form 214 shows the National Defense Service Medal, the Vietnam Service Medal with 60 Device, the Vietnam Campaign Medal with 2 bronze service stars, the Army Commendation Medal, the “Combat Infantry Badge”, and the Bronze Star Medal as authorized awards. The Board notes the applicant was actually awarded the Combat Medical Badge, not the Combat Infantryman Badge, and that he was awarded the Vietnam Cross of Gallantry with Palm Unit Citation which is not shown on his discharge document.

7. The applicant’s records contain discharge processing documents which show that he was notified on 27 August 1971 by his commanding officer of pending discharge under the provisions of Army Regulation 635-212 for unsuitability due acts of misconduct and inability to adjust to the military as evidenced by repeated commission of petty offenses and habitual shirking. Records show the applicant received nonjudicial punishment six times for several instances of failure to repair, illegal possession of alcohol, and disobeying a lawful order. He also was counseled and assigned to different duty positions which failed to correct his “intentional shirking” of duties and substandard manner of performance. The applicant was advised of his rights in writing, consulted with counsel, and then waived, in his own hand, consideration of his case by a board of officers, submission of statements in his own behalf, and representation by counsel. In so doing, the applicant acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all benefits administered by the Veterans Administration if a general or undesirable discharge were issued. The applicant underwent a separation medical examination and a mental status evaluation and was found qualified for separation with a physical profile of 1111111. On 23 September 1971, the separation authority approved discharge under the provisions of Army Regulation 635-212 for unsuitability and the applicant was discharged on 26 September 1971.

8. There is no indication in the applicant’s personnel records that he was a POW during the Vietnam conflict. Informal coordination with the Total Army Personnel Command revealed the applicant’s name did not appear on the roster of POW’s

9. There is no evidence the applicant was considered for or recommended for award of the Medal of Honor at the time of his service in Vietnam. Informal coordination with the Awards Branch of the Total Army Personnel Command revealed that the applicant was not under consideration for award of the Medal of Honor.

10. There is no evidence of record which shows the applicant was awarded the Purple Heart. The applicant’s service medical records do not show he was treated for wounds received as a as a result of hostile action. Informal coordination with the Awards Branch of the Total Army Personnel Command revealed that the applicant’s name was not on the Vietnam Casualty Roster.

11. The applicant’s service medical records do not indicate that he suffered from or was treated for any condition as a result of exposure to a toxic chemical. His service medical records contain a separation medical examination, dated 30 August 1971, which shows that he was found qualified for separation and does not indicate any effects or conditions resulting from exposure to toxic chemicals.

12. The applicant’s military personnel records contain Headquarters, 1st Cavalry Division Special Orders Number 310, dated 6 November 1970, which awarded him the Combat Medical Badge. The applicant’s DA Form 20 (Enlisted Qualification Record) also shows under item 41 (Awards and Decorations) that he was awarded the Combat Medical Badge by the same General Order cited above. There are no orders in the applicant’s personnel records which show that the applicant was awarded the Combat Infantryman Badge.

13. The applicant’s records show that he was trained as a medical aidman in military occupational specialty (MOS) 91A and served in that MOS while he was assigned in Vietnam. There is no evidence the applicant was awarded an infantry MOS or served in an infantry duty position in combat.

14. The applicant was awarded the Vietnam Cross of Gallantry with Palm Unit Citation by Department of the Army General Order Number 42, dated 1972.
15. Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. It provided, in pertinent part, for discharge due to unsuitability because of apathy of those individuals who displayed a lack of appropriate interest and/or an inability to expend effort constructively. When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

16. Army Regulation 600-8-22 provides, in pertinent part, for award of the POW Medal. The regulation states that the POW Medal was authorized on 8 November 1985 and is awarded to individuals who in past armed conflicts were taken prisoner or held captive.

17. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Medal of Honor. The Medal of Honor is awarded by the President in the name of Congress to a person who while a member of the Army distinguishes himself or herself conspicuously by gallantry and intrepidity at the risk of his or her life above and beyond the call of duty while engaged in an action against an enemy of the United States. The regulation provides that the deed performed must have been one of personal bravery or self sacrifice so conspicuous as to clearly distinguish the individual above his comrades and must have involved the risk of life. Further, the regulation requires that “incontestable proof” of the performance of the service will be exacted and each recommendation for this decoration will be considered on the standard of extraordinary merit.

18. Army Regulation 600-8-22 provides, in pertinent part, 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.

19. Army Regulation 600-8-22 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. They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size. The Awards Branch of the Total Army Personnel Command has advised, in similar cases, that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11F, 11G, or 11H.

20. 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.

CONCLUSIONS:

1. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The applicant declined counsel, waived his right to a hearing before a board of officers, and acknowledged that he understood the effects of his discharge. There was no indication of procedural errors which would tend to jeopardize his rights, and the character of the discharge is commensurate with the applicant's overall record of military service. Therefore, there is no basis for upgrading the applicant’s discharge from general to honorable.

2. There is no evidence available to the Board, and the applicant has provided no evidence, which shows that he was a POW; therefore, he is not entitled to the POW Medal.

3. There is no evidence available to the Board, and the applicant has provided no evidence, which shows that he was recommended for or was awarded the Medal of Honor; therefore, he is not entitled to this award.

4. There is no evidence available to the Board, and the applicant has provided no evidence, which shows that he was wounded or treated for wounds due to hostile action; therefore, he is not entitled to award of the Purple Heart.

5. The applicant was awarded the Combat Medical Badge; therefore, he is entitled to correction of item 24 of his DD Form 214 to show this award.

6. Evidence of record shows the applicant was not eligible for award of the Combat Infantryman Badge, but was awarded the Combat Medical Badge. As a result, the Board has determined the entry “Combat Infantry Badge” is an administrative error and should be deleted.

7. The applicant was awarded the Vietnam Cross of Gallantry with Palm Unit Citation; therefore, he is entitled to correction of his records to show this award.

8. The applicant was on active duty from 29 August 1969 to 26 September 1971. Service medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty. At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation with a physical profile of 111111. Accordingly, the applicant was separated from active duty for reasons other than physical disability. Based on these facts, the Board has determined the applicant’s service medical records are correct as currently constituted and he is not entitled to a disability discharge.

9. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected:

a. by deleting the entry “Combat Infantry Badge” from item 24 of the DD Form 214 of the individual concerned;

b. by adding the entry “Combat Medical Badge” in item 24 of his DD Form 214; and

c. by showing he was awarded the Vietnam Cross of Gallantry with Palm Unit Citation.

2. That so much of the application as is in excess of the foregoing be denied

BOARD VOTE:

JEV_____ LLS_____ TNK____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ______________________
                  CHAIRPERSON