MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 30 May 2002
         DOCKET NUMBER: AR2001061424


         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. W. W. Osborn, Jr.		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Ms. Paula Mokulis		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: Reconsideration of his earlier appeal to correct his military records by upgrading general discharge for the good of the service discharge to honorable and by awarding him the Purple Heart.

APPLICANT STATES: In effect, he repeats his contentions that he was coerced into a confession and to agree to the discharge. He was the scapegoat for the company commander and a Staff Sergeant S_____ who sought to conceal their own behavior. He believes that he should be awarded the Purple Heart because he had depleted uranium burns on his face from the U.S. tank munitions. The applicant cites a 1999 Christmas card from the company commander as proof that this individual is still trying to influence the applicant's behavior. In support of his request the applicant presents an unsigned 12 August 2001 document as the sworn statement of Master Sergeant (MSG) M_____. He also submits several additional magazine and newspaper articles and a Department of Veterans Affairs (VA) certification that he has a service connected disability rating of 30 percent.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in the decisional document prepared to reflect the Board's previous consideration of the case (AR2001053142) on 17 July 2001.

The applicant submissions are new evidence that requires Board consideration.

The memorandum of consideration of the Board's original review of the applicant's request notes that, following Operation Desert Storm, the applicant, then a first lieutenant, was separated with a general discharge based on his voluntary request for discharge for the good of the service in lieu of trial by court-martial on charges of running away from his unit and not returning until after the engagement; abandoning his command, casting away his personal weapon and ammunition, and cowardly refusal to perform his duty.

The 12 August 2001 document attributed to Master Sergeant (MSG) M_____ describes the incident wherein the section of two Bradley Fighting Vehicles were separated from the rest of the company. The action started when two Iraqi soldiers came out of a bunker and fired rocket-propelled grenades (RPGs) at them. Moments before this attack the applicant had been on the radio with the company commander who had warned to "be prepared for counter-attack." After taking two direct hits the applicant ordered MSG M____ to get out, but the MSG felt he had to go back to man the 25mm gun on the Bradley; however, he had to abandon that effort after a third hit knocked him off the vehicle. He then ran to

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catch up with the applicant. They heard vehicles approaching and, expecting a counter-attack, thought they were enemy vehicles. The applicant apparently dropped his M16 rifle while trying to empty his pockets of captured Iraqi souvenirs. Moments later they identified the oncoming vehicles as friendly. They could not account for all the missing personnel until the next day when they learned from their company, via the radio, that MSG M____'s driver had been killed and that they had, in fact, been fired upon by the same friendly forces that had picked them up. Weeks later Staff Sergeant (SSG) S____, who had been in charge of the dismounted infantrymen, made a big deal out of trying to get recommended for an award for heroism. He became incensed at the applicant
and MSG M____ for not recommending him for an award. The company commander was in trouble because, before the ground war started, he had improperly relieved a sergeant first class for cause. The staff sergeant demanded a trial by court-martial and the applicant was scheduled to testify against the company commander.

"Blue on Blue" an article in Cleveland, February, 2001 discusses the impact on the family of another soldier killed by "friendly fire" from a U.S. tank. This individual, also a Bradley Fighting Vehicle crewman was in B Company, 1^st Battalion, 41^st Infantry Regiment. His family was twice misinformed about the cause of his death before they learned that he was the victim of "friendly fire." The article reports that the "prevailing notion" is that, when seen through the thermal imaging sights of the U.S. tanks, Iraqi RPG rounds exploding against the Bradleys looked like the muzzle flashes from a tank's main gun causing the U.S. tankers to believe that they were under attack. The applicant is quoted only in describing the situation of the infantrymen being transported in the Bradleys.

A printout of a website entitled page "Fratricide at UMM Hajul" (a small airfield near Basra, Iraq) charges that this friendly fire incident resulted in multiple cover-ups and fraudulent recommendations for awards for heroism.

An 11 November 1991 article from the Houston Chronicle discusses friendly fire incidents in general and the death of MSG M____'s driver in particular. It also cites the radio transmission in which, the applicant claims, the company commander announced that he was abandoning them.

A 26 August 1991 article from Army Times discusses the problem of friendly fire in general and a companion piece talks about the specific misfortunes of the Bradley crews of the 1^st Battalion, 41^st Infantry.

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An article entitled "They Didn't Have to Die " from an unidentified source cites the friendly fire statistics from Operation Desert Storm as illustration of the need for better friend/foe identification (IFF) systems.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence that was not in the record at the time of the Board’s prior consideration. This includes but is not limited to any facts or arguments as to why relief should be granted. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than one year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board
will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

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. The statement attributed to MSG M____ relates various personnel problems with individuals within the company and with the company commander but it does not directly provide any information that mitigates the applicant's behavior.

2. The various newspaper and magazine articles relate to the applicant's situation only in the most general way. While the subject of friendly fire is horrendous and disturbing it does not absolve the applicant of responsibility for his admitted behavior. Furthermore, such evidence as does exist shows that the applicant ran before he knew that friendly fire was a factor.

3. There is no substantiating evidence to show that the applicant was coerced or that he was not responsible for his actions either at the time of the incident, when he made a statement or when he submitted his request for discharge for the good of the service in lieu of trial by court-martial.

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4. General and even specific information that cover-ups occurred and unwarranted awards were sought does nothing to show that those factors had any bearing on the applicant's case.

5. The contentions of the applicant have been noted by the Board. However, they are not supported by either evidence submitted with the application or the evidence of record. The discharge process was in accordance with applicable law and regulations and the applicant's service was appropriately characterized.

6. There is no available evidence that the applicant was treated for a wound that was sustained under conditions that qualify for award of the Purple Heart.

7. The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

8. 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

_RVO___ ___JPI __ ___PM __ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2001061424
SUFFIX
RECON
DATE BOARDED	20020530
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	17 October 1991
DISCHARGE AUTHORITY	AR 635-120 chapter 5
DISCHARGE REASON	A70.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	A70.11
2.
3.
4.
5.
6.