MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 9 August 2001
         DOCKET NUMBER: AR2001057803

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Fred N. Eichorn		Member
Ms. Gail J. Wire		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 he be awarded the Purple Heart, the Joint Service Achievement Medal, the Soldier’s Medal or the Medal of Valor, the Joint Service Commendation Medal, and the Army of Occupation Medal. He also requests promotion to Staff Sergeant, E-6.

APPLICANT STATES: That he is 100 percent disabled. He contracted asthma from saving two privates from a barracks fire. He survived two gang-related contract hits on his life. His house was sprayed by semi-automatic pistols and an Uzi. His vehicle was sprayed while he was in it. To add insult to injury, he has not received a Purple Heart or any decorations for all he had given because he was not in a combat area. He has not been allowed medical care at a military hospital because he is no longer active duty. When he first enlisted, he was supposed to train as a 95B (Military Police) but somehow he ended up at 91B (Medical Specialist) training. In Alaska, the Criminal Investigation Command (CID) recruited him as investigator and he started on-the-job training as a 95B. Drug dealers there tried to shoot him but the CID did not document it. Later he was sent to Fort Eustis, VA to be an investigator for the CID there except they said they could not send him to the MP school first because there was a problem. He was sent undercover to the Medical Department Activity (MEDDAC). All his work was done under a MEDDAC cover assignment. He did the job but never received credit for it. He finally went to 95B training and was sent to Fort Belvoir. He went to the E-6 board but never got promoted. When he was in the hospital no one from either his chain of command or CID went to see him.

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

He enlisted in the Regular Army on 14 September 1979. He completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 91A (Medical Specialist). He was then assigned to the 1^st Battalion, 60^th Infantry, 172d Infantry Brigade, Fort Richardson, AK as a medic and senior aidman. He attended Ranger training in 1978 (but apparently did not complete it due to a broken leg) and Air Assault training in 1979. On 19 September 1979, he was assigned to the 56^th Military Police Company, Fort Richardson for on-the-job training as a military policeman. On 22 July 1980, he was assigned to U. S. Army MEDDAC, Fort Eustis, VA as an ambulance driver. On 1 February 1982, he was assigned to the 1^st Battalion, 75^th Rangers, Hunter Army Air Field, GA as a medical specialist. He was also assigned to the 24^th Medical Company and the 547^th Medical Company, Hunter Army Air Field as a medical aidman. On 11 September 1983, he was assigned to the 4^th Battalion, 325^th Infantry in Italy as a medical aidman. On 17 September 1984, he was assigned to the 5^th General Hospital, Germany as a medical specialist.

In 1986, the applicant completed 95B training at Fort McClellan, AL and was awarded MOS 95B. On 10 March 1986, he was assigned to the 437^th Military Police Company, Fort Belvoir, VA as a military policeman and assistant battalion S-3 (operations, MOS 95B). His noncommissioned officer evaluation report (NCOER) for the period March – November 1987 shows he was attached to the CID Drug Suppression Team.

The applicant’s E-6 promotion packet is not available.

On 19 January 1988, the applicant was assigned to the Medical Holding Company, Walter Reed Army Medical Center.

On 25 February 1988, the applicant was awarded a Certificate of Achievement for exceptionally meritorious achievement while performing duties as a member of the Fort Belvoir, VA CID’s Drug Suppression Team. On 8 March 1988, the Chief, Criminal Law Office, Fort Belvoir, VA, acknowledged that the applicant’s work as an undercover CID agent was crucial in obtaining court-martial convictions on two individuals on drug distribution/conspiracy to distribute charges.

On 19 April 1988, a Physical Evaluation Board (PEB) found the applicant unfit for duty due to organic personality syndrome with a 30 percent disability rating. In May 1988, he was a victim of an apparently deliberate hit-and-run accident. On 22 July 1988, a PEB further found him unfit for duty due to an open left tibia fibular fracture, status post surgery (40 percent); unstable right knee, status post anterior cruciate ligament reconstruction (20 percent); and incomplete lesion right deep peroneal nerve (10 percent) for a total of 70 percent.

On 7 March 1989, the applicant was placed on the Temporary Disability Retired List (TDRL). On 9 May 1990, he was removed from the TDRL and permanently retired with a 70 percent disability rating.

Army Regulation 600-8-22 provides policy and criteria concerning individual military decorations. It states that U. S. Army military decorations are awarded in recognition of heroism, meritorious achievement, or meritorious service. The decision to award an individual a decoration and the decision as to which award is appropriate are both subjective decisions made by the commander having award approval authority.

Army Regulation 600-8-22 states that the Purple Heart is awarded to any member of an Armed Force who has been wounded or killed in any action against an enemy of the United States. The Soldier’s Medal is awarded for distinguished heroism not involving conflict with the enemy. The action must have involved personal danger or hazard and the voluntary risk of life. The same degree of heroism is required as for the award of the Distinguished Flying Cross. Awards are not to be based solely upon the saving of a life. The performance of the act of heroism must be evidenced by voluntary action above and beyond the call of duty. The extraordinary achievement must have resulted in an accomplishment so exceptional and outstanding as to clearly set the individual apart from his comrades or from other persons in similar circumstances. The Joint Service Achievement Medal and the Joint Service Commendation Medal are Department of Defense decorations awarded to individuals assigned or attached to Defense or other joint units or activities. The Army of Occupation Medal is awarded for service at a normal post of duty in Germany between 9 May 1945 and 5 May 1955; in Austria between 9 May 1945 and 27 July 1955; in Berlin between 9 May 1945 and 2 October 1990; in Italy between 9 May 1945 and 15 September 1947; in Japan between 3 September 1945 and 27 April 1952; and in Korea between 3 September 1945 and 29 June 1949. There is no such military medal as the “Medal of Valor.”

Army Regulation 600-8-19 prescribes the enlisted promotions and reductions function of the military personnel system. In pertinent part, it states that Headquarters, Department of the Army (HQDA) determines the needs of the Army by grade and MOS. A determination is then made for each MOS as to what promotion point cutoff score would promote the desired number of soldiers to meet the needs of the Army in a specific month. These decisions are based primarily upon budget constraints and individual MOS requirements. HQDA sends out a monthly letter that announces the promotion point cutoff score. Promotions are only authorized during the month for which the cutoff score is met.

Title 10, U. S. Code, section 1130 (formerly known as section 522 of the National Defense Authorization Act of 1996) provides that the Service concerned will review a proposal for the award of, or upgrading of, a decoration that would not otherwise be authorized to be awarded based upon time limitations previously established by law. A separate DA Form 638, Recommendation for Award, will be submitted for each award. The unit, the period of assignment, and the award being recommended must be clearly identified. A narrative of the actions or period for which recognition is requested must accompany the DA Form 638. Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates and related documents. Corroborating evidence is best provided by commanders, leaders and fellow comrades who had personal knowledge of the circumstances and events relative to the request.
The law also requires that a request for award not previously submitted in a timely fashion will only be considered under this provision if the request has been referred to the Service Secretary from a Member of Congress. The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rests with the requestor. Requests should be sent, through the Member of Congress, to: Commander, U. S. Total Army Personnel Command, ATTN: TAPC-PDO-PA (Awards Branch), Room 3S67, Hoffman II, 200 Stovall Street, Alexandria, VA 22332-0400.

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The Defense Enrollment Eligibility Reporting System (DEERS) customer service office (1 800 538-9552) confirmed that a retiree enrolled in DEERS and TRICARE Prime should not have problems obtaining care at a military facility. That office stated that it is possible that a particular facility will not treat retirees due to a lack of sufficient staffing (active duty have priority). Their office can be contacted for further information or assistance but they must know the reason the individual was refused treatment.

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

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The Purple Heart is awarded to a member of an Armed Force who has been wounded or killed in any action against an enemy of the United States. The evidence of record shows, as the applicant agrees, that he was not wounded as the result of combat action. The evidence of record does not show that he was assigned or attached to a Department of Defense or other joint unit or activity so it appears he does not meet the eligibility criteria for award of the Joint Service Achievement Medal or the Joint Service Commendation Medal. The evidence of record does not show that he was assigned or attached to a unit in Berlin so it appears he does not meet the eligibility criteria for award of the Army of Occupation Medal – Berlin. He did not serve during the eligibility periods for any of the other Army of Occupation Medals.

3. There is no such military medal as the “Medal of Valor.” If the applicant believes he should have been recommended for award of the Soldier’s Medal, he may follow the procedures outlined in Title 10, U. S. Code described above.

4. The applicant’s E-6 promotion packet is not available. He does not contend nor does he provide evidence to show that he made the cutoff score for promotion to E-6 prior to his separation.

5. If the applicant is being refused treatment at a military medical treatment facility, he should determine the reason for the refusal and, if necessary, call the DEERS customer service office at 1 800 536-9552 for assistance.

6. 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

__inw___ __fne___ __gjw___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001057803
SUFFIX
RECON
DATE BOARDED	20010809
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	107.0015
2.	107.0019
3.	107.0024
4.	107.0010
5.	107.0067
6.	131.00