MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 01 AUGUST 2002
         DOCKET NUMBER: AR2002071274

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Regan K. Smith		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: Award of the Purple Heart, physical disability retirement or separation, and deletion of the AWOL entry in his records.

APPLICANT STATES: That he was never issued a Purple Heart and never compensated for his many scars. He was never AWOL. No one ever explained to him how and why he was blown up. His neighbor receives a 20 percent disability rating for an upset stomach. He states that his evidence is his record of service and his word. Every time he shaves he is reminded of the painful memories.

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

The applicant enlisted in the Army for three years on 24 November 1967 and was assigned to Fort Jackson, South Carolina for basic combat training. His enlisted qualification record shows that he was a patient in the Army hospital at Fort Jackson from 27 March 1968 to 6 May 1968, when he was returned to his basic training unit. A 30 April 1968 medical record shows that the applicant had a post-fracture to his left lower leg and was awarded a physical profile serial of 1 1 3 (T) 1 1 1. A 9 May 1968 medical record shows that the applicant sustained an injury to his left leg while participating in hand to hand combat training. He was admitted to the hospital on 18 December 1967. The applicant gave a history of having sustained a fracture of his left leg in September 1967, which had been treated in a cast for one month. The applicant was placed in a cast, given convalescent leave, and underwent physical therapy. He was discharged to duty on 9 May 1968.

On 17 June 1968 the applicant was awarded the Expert Qualification Badge with rifle bar.

The applicant’s enlisted qualification record shows that he was AWOL from 10 September 1968 to 15 September 1968.

The applicant completed training and in December 1968 was assigned to the 647^th Quartermaster Company in Vietnam as an assistant pump station operator.

A 6 November 1969 clinical record shows that the applicant was admitted to the hospital on 3 November 1969 with multiple fragment wounds of legs, face, neck, flank, and arm.

A 14 November 1969 clinical record cover sheet prepared by the 249^th General Hospital in Vietnam shows that the applicant had various multiple fragment wounds, with no nerve or artery involvement, as a result of a claymore mine that went off accidentally at 1800 hours on 29 October 1969 at Pump Station #8. That record shows that the applicant was transferred to Walter Reed General Hospital. The applicant participated in four campaigns during his tour in Vietnam and the 647^th Quartermaster Company was awarded the Republic of Vietnam Gallantry Cross Unit Citation with Palm for its actions during the applicant’s assignment to that unit.

A clinical record sheet prepared by Walter Reed General Hospital shows that the applicant was admitted to that hospital on 15 November 1969 and that he spent 7 days in the hospital and 31 days on leave. That form shows that he underwent general surgery while at Walter Reed.

The applicant’s enlisted qualification record shows that he was assigned to the 249^th Medical Detachment at Fort Meade, Maryland as a medical supply specialist in February 1970.

On 18 February 1970 the applicant received nonjudicial punishment under Article 15, UCMJ, for failure to stand reveille formation and for failure to obey a lawful order to get out of bed and make reveille formation.

Orders published at Fort Meade on 7 August 1970 show that the applicant’s basic pay entry date was changed from 24 November 1967 to 30 November 1967 because of AWOL.

A 17 October 1970 report of medical examination shows that the applicant was medically qualified for separation with a physical profile serial of 1 1 T-3 2 1 1. That report indicates that the applicant had a profile on his leg and a hearing loss. It indicated that an orthopedic consultation had been scheduled for 10 November 1970. In the report of medical history that the applicant furnished for the examination, the applicant listed various ailments and injuries that he had, or had had, to include malaria in Vietnam in 1969, multiple fragment wounds, and hearing loss. The applicant stated that his health was fair, except for limitations on his activities.

The applicant was released from active duty on 27 November 1970 in the rank of E-4. He had 2 years, 11 months, and 28 days of service, and 6 days of lost time. His DD Form 214 shows that he was awarded the National Defense Service Medal and the Vietnam Service Medal. It does not show award of the Purple Heart. The applicant’s enlisted qualification record does not show that he was wounded in action, nor does it show award of the Purple Heart.

Army Regulation 600-8-22 provides 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.


Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 635-40 states in pertinent part that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

That paragraph goes on to say 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.

The Republic of Vietnam Campaign Medial is awarded to soldiers who have served in the Republic of Vietnam for 6 months during the period 1 March 1961 to 28 March 1973.

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 applicant’s injuries that he sustained in 1969 in Vietnam were a result of an accidental explosion from a claymore mine, as indicated in the evidence of record - not as a result of enemy action. There is insufficient evidence to warrant award of the Purple Heart.

2. The information concerning the fact that the applicant was AWOL is as indicated in the evidence of record. The circumstances of the AWOL are unknown. Nevertheless, regularity is presumed. The applicant has provided no evidence that the information contained in his records is incorrect. Consequently, his request to delete the AWOL information in his records is not granted.

3. The applicant sustained a fracture to his left leg while at Fort Jackson. He stated that he contacted malaria while in Vietnam. He did sustain multiple fragment wounds as a result of the accidental explosion of a claymore mine in Vietnam. Nevertheless, his 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. The Board notes that after he was discharged from the hospital at Walter Reed, he performed duties at Fort Meade for over 9 months as a medical supply specialist. His continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation. At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation. Accordingly, the applicant was separated from active duty for reasons other than physical disability.

4. The applicant was medically fit for retention at the time of his separation. He has submitted no probative medical evidence to the contrary. He did not have any medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation.

5. The applicant has submitted neither probative evidence nor a convincing argument in support of his request. 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 that requirement.

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.

NOTE: The Army Review Boards Agency in St. Louis is requested to correct the applicant’s records to show award of the Expert Qualification Badge with rifle bar, the Vietnam Service Medal with four bronze service stars (one for each campaign), the Republic of Vietnam Gallantry Cross Unit Citation with Palm, and the Republic of Vietnam Campaign Medal.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__SAC __ __MHM __RKS __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071274
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020801
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.	108.00
3.	123.00
4.
5.
6.