MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 August 2002
         DOCKET NUMBER: AR2002073932

         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
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Ms. Melinda M. Darby		Chairperson
Mr. Curtis L. Greenway		Member
Mr. Roger W. Able		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, award of the Purple Heart.

APPLICANT STATES: In effect, that he did not have a separation physical prior to his discharge and that he should have been medically discharged. He contends that he received the Purple Heart but it was deleted. He also contends that his court-martial was unjust.

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

The applicant enlisted on 8 August 1968 for a period of 2 years. He served as a light weapons infantryman in Vietnam from 12 January 1969 through 11 January 1970.

Headquarters 11th Armored Cavalry Regiment General Orders Number 57, dated 5 May 1969, show the applicant was awarded the Purple Heart for wounds received in connection with military operations against a hostile force in Vietnam on 13 April 1969.

The applicant’s service personnel records contain a letter, dated 19 May 1969, from the Assistant Adjutant, 2d Squadron of the 11th Armored Cavalry Regiment. This letter states, in pertinent part, “Information furnished this headquarters indicates EM [enlisted member] did not receive a wound requiring medical treatment as outlined in AR [Army Regulation] 672-5-1. Investigation reveals that EM boarded a dustoff helicopter without authority since he had not been wounded. He was not treated at the hospital for any type of injury and was returned to his unit. The casualty feeder report (DA Form 1156) was in error.”

Headquarters 11th Armored Cavalry Regiment General Orders Number 73, dated 2 June 1969, revoked the orders for award of the Purple Heart pertaining to the applicant.

There is no additional evidence in the applicant’s service personnel records which shows that he was wounded or treated for wounds as a result of hostile action in Vietnam.

Records show the applicant received five nonjudicial punishments for various infractions which included failure to obey lawful orders, disrespect toward a superior commissioned officer, failure to go to his appointed place of duty and being absent without leave.

On 29 November 1969, the applicant was convicted by a special court-martial of assault upon a superior noncommissioned officer. He was sentenced to be



confined at hard labor for 3 months, reduction to E-1 and forfeitures of $82 per month for 3 months. On 6 December 1969, the convening authority approved the sentence and suspended the confinement at hard labor for 3 months.

On 12 August 1970, the applicant underwent a separation medical examination and was qualified for separation with a physical profile of 111311. The applicant received a numerical designation of “3” under hearing and ears for bilateral hearing loss. Item 73 (Notes) on the applicant’s Standard Form 88 (Report of Medical Examination), dated 12 August 1970, shows he provided the entry, “I am in good health but I don’t predicts tomorrows health.”

On 27 August 1970, the applicant was discharged with a general discharge under the provisions of Army Regulation 635-200, chapter 2, for expiration of term of service.

Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, 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.

Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty. The individual should receive assignments commensurate with his or her functional capacity.

Court-martial convictions stand as adjudged or modified by appeal through the judiciary process. In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.
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 contention that he received the Purple Heart but it was deleted is supported by the evidence of record. Evidence of record shows the applicant was awarded the Purple Heart for wounds received on 13 April 1969 in Vietnam. Evidence of record also shows that the applicant did not receive a wound requiring medical treatment as outlined in Army Regulation 672-5-1, that he boarded a helicopter without authority since he had not been wounded, that he was not treated at the hospital for any type of injury and the casualty feeder report was in error. As a result, the orders for the Purple Heart were revoked.

2. There is no additional evidence of record available to the Board, and the applicant has provided no evidence, which shows that he was wounded or treated for wounds as a result of hostile action in Vietnam. Therefore, the Board determined that there is insufficient evidence on which to base award of the Purple Heart in this case.

3. The Board considered the applicant’s contention that he did not have a separation physical prior to his discharge. However, medical evidence of record shows that the applicant underwent a separation medical examination on
12 August 1970.

4. The Board considered the applicant’s contention that he should have been medically discharged. However, at the time of the applicant’s separation medical examination on 12 August 1970, competent medical authority determined that the applicant was then medically qualified for separation with a physical profile of 111311. Accordingly, the applicant was separated from active duty for expiration of term of service, not as the result of a medical condition.

5. The Board also considered the applicant’s contention that his court-martial was unjust. However, there is no evidence of record available to the Board, and the applicant has provided no evidence, to support this contention.

6. 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.

7. 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

MMD___ CLG_____ RWA_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073932
SUFFIX
RECON
DATE BOARDED	20020820
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	107.0015
2.
3.
4.
5.
6.