MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 23 October 2001
         DOCKET NUMBER: AR2001057241

         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. Carl W. S. Chun		Director
Mr. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Ms. Shirley L. Powell		Chairperson
Mr. Allen L. Raub		Member
Mr. Thomas E. O'Shaughnessy		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)

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APPLICANT REQUESTS: That his records be corrected to show that he was separated in pay grade E-5, and that he was awarded the Purple Heart.

APPLICANT STATES: In three letters, that he served his entire year tour in Vietnam in the jungle, without as much as a single break. He volunteered for all the missions no one else would take, which resulted in his rapid promotion to sergeant. While in combat, he was injured when he was blown off an armored personnel carrier (APC) by a 500 pound anti-tank mine, but has been told by other Government agencies that he can’t get a Purple Heart if the Army didn’t issue him one at the time he was injured. He contends that he did not report the injury because they were short handed at the time, and he would have been medevaced if he had reported it. As for his rank, he states, in effect, that since he earned his promotion for his exemplary combat service in Vietnam, that rank should not have been taken from him for misconduct he committed after his return to the United States.

In support of his application he submits statements from two soldiers who served with him who state they witnessed him being thrown from an APC when the APC hit a landmine. One of the people making a statement does not say that he saw the applicant sustain any wound or injury as a result of the blast. The second person making a statement says that the applicant was dazed and disoriented following the blast, and he noticed that the applicant was in pain after the incident. The applicant also submits documents attesting to his post-service conduct and accomplishments.

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

The applicant enlisted in the Regular Army on 31 January 1969, was awarded the military occupational specialty of light weapons infantryman, and was promoted to pay grade E-5. He served in an infantry unit in Vietnam from 21 July 1969 to 20 July 1970.

On 20 October 1970 the applicant pled and was found guilty by a summary court-martial of being Absent Without Leave (AWOL) from 6 to 7 October 1970. His sentence consisted of a reduction from pay grade E-5 to pay grade E-3, hard labor without confinement for 45 days, and a forfeiture of $112.00. However, the approving authority suspended the sentence for 3 months.

On 24 February 1971 the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniformed Code of Military Justice (UCMJ), for recklessly driving his privately owned vehicle through a flashing red light. His punishment consisted of a forfeiture of $10.00.

On 23 March 1971 the applicant accepted NJP for dereliction in the performance of his duties, and for disobeying a lawful order. His punishment consisted of a reduction from pay grade E-5 to pay grade E-4 and a forfeiture of $125.00.

On 8 April 1971 the applicant accepted NJP for being AWOL from 5 to 7 April 1971. His punishment consisted of 14 days of extra duty and a $25.00 fine. On 5 May 1971 the applicant pled and was found guilty by a summary court-martial of disobeying a lawful order, and for absenting himself from his appointed place of duty, to wit, guard duty. His sentence consisted of a reduction from pay grade E-4 to pay grade E-2, forfeiture of $100.00, and confinement at hard labor for 30 days. However, the approving authority suspended the confinement and reduction for 2 months.

On 22 June 1971 the applicant accepted NJP for being AWOL on 21 June 1971.  His punishment consisted of 14 days of extra duty and a fine of $25.00.

On 28 July 1971 the applicant accepted NJP for being AWOL from 28 June to 28 July 1971. His punishment consisted of a reduction from pay grade E-4 to pay grade E-3, a forfeiture of $70.00, and 14 days of both extra duty and restriction.

On 16 August 1971 the applicant accepted NJP for failing to go to his appointed place of duty, and for failing to obey a company regulation. His punishment consisted of a reduction from pay grade E-3 to pay grade E-2, and 14 days of both extra duty and restriction.

On 23 August 1971 the applicant accepted NJP for failing to go to his appointed place of duty. His punishment consisted of a forfeiture of $25.00.

On 25 August 1971 the applicant went AWOL. He returned to military control on 15 September 1971. In a statement made by the applicant’s unit executive officer (XO) pertaining to the applicant’s return to military control after that period of AWOL, it was stated that the XO decided that the applicant should be placed in pre-trial confinement based on the applicant’s history of only remaining under military control until he received a paycheck, at which time he would depart AWOL again. Based on that decision, the applicant was placed under custody while the XO obtained the necessary confinement orders, but during that brief period of time the applicant escaped custody by climbing through the bathroom window. The applicant remained AWOL until 14 October 1971.

On 22 October 1971 court-martial charges were preferred against the applicant for being AWOL from 25 August to 15 September 1971, for being AWOL from 15 September to 14 October 1971, and for escaping lawful custody.

The applicant then requested discharge in lieu of trial by court-martial, for the good of the service. That request was approved and he was issued an Undesirable Discharge Certificate on 24 November 1971. He had 2 years and 7 months of creditable service and 84 days of lost time. His awards and decorations consisted of the Marksman Qualification Badge with Rifle Bar, the Sharpshooter Qualification Badge with Rifle Bar, the National Defense Service Medal, the Vietnam Service Medal with 1 bronze service star, the Vietnam Campaign Medal with 1960 device, the Combat Infantryman Badge, the Army Commendation Medal, the Vietnam Civil Actions Medal First Class and the Vietnam Gallantry Cross Unit Citation with Palm. He was not awarded any decorations for valor.

On 8 April 1976 the applicant was given a Presidential Pardon.

On 18 September 1979 the Army Discharge Review Board upgraded the applicant’s undesirable discharge to under honorable conditions (General Discharge Certificate).

Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for wounds 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 by a medical officer, and the medical treatment must have been made a matter of official record.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1. There is no evidence that the applicant sustained a wound which would warrant the award of the Purple Heart. While the applicant has submitted statements attesting that he was thrown from an APC when it ran over a land mine, neither person said that they witnessed the applicant being wounded as a result of that incident.

2. The applicant was demoted for numerous, repeated acts of misconduct. The Board notes that several of his reductions were suspended, giving him ample opportunity to retain his rank. That he did not heed those warnings was his choice.

3. The applicant has cited his combat service as grounds to negate his reductions in grade. The Board does not accept that argument. While the applicant’s combat service may have been taken into consideration in the ADRB’s decision to upgrade his undesirable discharge, combat service does not excuse misconduct.  Every soldier, regardless of type of award of decoration

received, is expected to conduct him or herself in a manner in keeping with the UCMJ. In this regard, the Board notes that the applicant was never given any decoration for valor.

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

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

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__alr ___ ____teo _ ____slp__ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001057241
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	200110123
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	107.00
2.	110.00
3.
4.
5.
6.