MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 8 August 2002
         DOCKET NUMBER: AR2002067413

         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. Paul Wright		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Lester Echols		Member
Ms. Margaret V. Thompson		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: In effect that his previous denial for an upgrade of discharge be reconsidered and, as a new issue, that he be considered for the award of the Purple Heart (PH).

APPLICANT STATES: That a loss of a family member from domestic violence and the resulting criminal processes caused his multiple absences from the U.S. Army. He states that he was wounded in the left knee and top of head during the battle of Dak To in 1968 and 1969.

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

On 9 February 1968, he entered on active duty for a period of 3 years. He successfully completed basic training and advanced individual training, and was awarded military occupational specialty (MOS) 11B, Light Weapons Infantryman. He went on to complete basic airborne training.

Upon graduation from airborne training, the applicant was assigned to duty in Vietnam as an infantryman with the 3rd Battalion, 12th Infantry, 4th Infantry Division. He successfully completed his tour of duty in Vietnam from August 1968 through August 1969. During the period 3-22 November 1967, the 4th Infantry Division participated in one of the bloodiest battles of the Vietnam War in the Central Highlands near Dak To. About 4,500 troops of the 4th Division and 173rd Airborne Brigade faced off against 6,000 North Vietnamese troops of the 174th Regiment. The North Vietnamese were forced to withdraw with some 1,455 dead. US casualties numbered 285 killed and 985 wounded.

On 3 October 1969, he was assigned to duty at Fort Bragg, North Carolina.

On 18 February 1970, he was convicted by a Special Court Martial for being absent without leave (AWOL) from 7 October 1969 through 29 January 1970. His punishment included hard labor without confinement for 3 months, restriction for 1 month, forfeiture of $30.00 of pay per month for 3 months, and reduction to pay grade E-1.

On 12 March 1970, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for being AWOL from 2-11 March 1970. Punishment included forfeiture of $40.00 per month for 2 months and a reprimand.

On 29 April 1970, he accepted NJP for being AWOL from 24-27 April 1970. Punishment included forfeiture of $20.00 per month for 1 month.

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On 6 January 1971, he was convicted by a Special Court Martial for being AWOL from 25 May 1970 through 3 September 1970, and from 26 September 1970 through 8 November 1970. His punishment included confinement at hard labor for 4 months, forfeiture of $50.00 pay per month for 6 months, and reduction to pay grade E-1.

The applicant's discharge proceedings are unavailable -- information in the available records indicates they were loaned to the Department of Veterans Affairs (DVA). The following information was taken from his hearing before the Army Discharge Review Board (ADRB) on 17 April 1984.

On 1 December 1970, he completed a separation physical and was found qualified for separation. An undated psychiatric examination cleared him for any administrative action deemed appropriate by the command.

On 15 January 1971, the applicant was notified of impending separation action for unfitness under the provisions of Army Regulation (AR) 635-212 because of frequent incidents of a discreditable nature with military authorities. He was informed of his rights.

On 19 January 1971, the applicant consulted with counsel. He waived his right to have his case considered by a Board of Officers and declined to submit a statement in his own behalf.

On 27 January 1971, the unit commander recommended elimination from the service with an Undesirable Discharge (UD). The battalion commander concurred.

On 22 February 1971, the General Court Martial Convening Authority waived rehabilitation requirements and directed separation for unfitness with the issuance of a UD.

On 26 February 1971, the applicant was separated with a UD. He was credited with 2 years of active federal service, and he had 386 days of lost time. His DD Form 214 shows that he was awarded the National Defense Service Medal, the Marksman Marksmanship Badge for the M-16 rifle, the Parachute Badge, the Vietnam Service Medal, the Vietnam Campaign Medal, the Combat Infantryman Badge, and the Army Commendation Medal.

The applicant's name does not appear on the Vietnam Casualty List as having been wounded in Vietnam.

As previously stated, the applicant petitioned the ADRB seeking a discharge upgrade. The ADRB denied the applicant's request on 17 April 1984.

The applicant applied to this Board seeking an upgrade of his discharge. On 27 May 1987, docket number AC86-08662, the Army Board for Correction of Military Records (ABCMR) denied the applicant's request.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel who were found to be unfit or unsuitable for military service. The regulation further provided, in pertinent part, that service members discharged for unfitness would be furnished an undesirable discharge.

Army Regulation (AR) 600-8-22 (Military Awards) sets forth Department of the Army criteria, policy and instructions concerning individual military awards, the Good Conduct Medal, service medals and service ribbons, combat and special skill badges and tabs, unit decorations, and trophies and similar devices awarded in recognition of accomplishments. It provides, in pertinent part, that the Purple Heart (PH) is awarded for a wound sustained as a result of hostile action. Substantiating evidence must be provided to verify that: (1) the wound was the result of hostile action; (2) the wound required medical treatment; and (3) the medical treatment was made a matter of official record.

Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam. This document shows that the applicant's unit was cited for award of the RVN Gallantry Cross with Palm Unit Citation, for the period 20 July 1965 to 28 March 1973 by Department of the Army General Order Number 8 dated 1974. The applicant's DD Form 214 does not show this award as an authorized award because it was awarded to his unit after he had been discharged.

Army Regulation 15-185, sets forth the procedures for processing requests to correct military records. Paragraph 2-15b provides specific guidance to be applied in cases involving requests for reconsideration that are received more than 1 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 to the applicant without action.

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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. Concerning his request for a discharge upgrade, the applicant has not submitted any new evidence that was not previously considered by both the ADRB and ABCMR to show fraud, mistake in law, mathematical miscalculation, manifest error to warrant a reconsideration.

2. Concerning award of the PH, the applicant has not submitted any evidence to show that he meets the criteria for award of the PH. The available medical records show no evidence that he was wounded and his DA Form 20 (Enlisted Qualification Record) shows no wounds in Item 40 (Wounds). The applicant is not on the Vietnam Casualty List. Finally, the applicant contends that he was wounded during the Battle of Dak To, but he did not arrive in Vietnam until August 1968 (the Battle of Dak To ended in November 1967).

3. The DD Form 214 does not show award of the Good Conduct Medal. However, after a careful review of the applicant's entire period of service, the Board determined that the applicant's extended periods of AWOL diminished the quality of his service and there is no basis for awarding him the Good Conduct Medal.

4. The applicant is entitled to have the RVN Gallantry Cross with Palm Unit Citation added to his DD Form 214. This should be accomplished by an administrative correction.

5. 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.

NOTE: Request that the Army Review Boards Agency, Support Division, St. Louis furnish the individual concerned a DD Form 215 (Correction to DD Form 214) to show in Item 24 that he was awarded RVN Gallantry Cross with Palm Unit Citation.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__rjw___ __le____ __mvt___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002067413
SUFFIX
RECON
DATE BOARDED	20020808
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19710226
DISCHARGE AUTHORITY	AR 635-212
DISCHARGE REASON	A51.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.5000
2.	107.0015
3.
4.
5.
6.