MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 15 July 2003
         DOCKET NUMBER: AR2003084989


         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:

Mr. Fred N. Eichorn		Chairperson
Ms. Margaret V. Thompson		Member
Mr. Eric N. Andersen		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 awarding him a higher percentage of physical disability. He also submitted requests for award of the Purple Heart and the Combat Infantryman Badge which are new issues not previously considered by the Army Board for Correction of Military Records (ABCMR).

The Board notes the applicant's request for placement on the permanent retired list. However, this issue is directly related to his request for a higher percentage of physical disability.

APPLICANT STATES: With regard to his request for a higher disability percentage, in effect, that the Army failed to properly assess his lower back injury and head trauma and also failed to provide immediate surgery to correct facial and nasal trauma. He also contends that various effects of the lower back injury and nerve damage were not fully considered, that an MRI was not performed on his lower back, and that the facial trauma was not thoroughly assessed which caused undue suffering.

With regard to his request for award of the Purple Heart he states, in effect, that he was wounded during enemy action. He contends that he sustained trauma to his head which resulted in facial and nasal nerve damage when the tip of a jeep antenna hit the right side of his face.

With regard to his request for award of the Combat Infantryman Badge he states, in effect, that a security assignment that lasted for more than three months was primarily an infantry combat assignment.

COUNSEL: The American Legion, as counsel for the applicant, points out the applicant was honorably discharged with a physical disability with entitlement to severance pay, reiterates the applicant's requests and recaps the applicant's supporting documents provided with his application. Counsel also points out that numerous requests for reconsideration have been denied by the ABCMR and that the applicant served in Vietnam.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in the Memorandum of Consideration prepared to reflect consideration of Docket Number AC76-07941 by the ABCMR on 27 July 1977.

On 2 December 1999, a request for reconsideration was considered and denied by the ABCMR (Docket Number AR1999022787).



Between 22 May 1978 and 12 March 2002, numerous requests for reconsideration were reviewed by the ABCMR. The staff determined that the applicant had not provided any new evidence and his requests were closed without action.

With his request for reconsideration to award him a higher percentage of physical disability, the applicant provided two letters (one undated letter and one letter dated 9 December 2001) and medical information pertaining to trauma related literature that was provided to the ABCMR on 12 March 2002. He provided medical records from the Department of Veterans Affairs, dated 2001 and 2002. He also provided a letter, dated 6 February 2003, and two exhibits of the Da Nang, Vietnam area.

In his current request, the applicant requests award of the Purple Heart and the Combat Infantryman Badge. These are new issues that will be considered by the Board.

The applicant served in Vietnam from 8 April 1971 through 31 March 1972. There is no evidence in the applicant's service personnel records that he was awarded the Purple Heart or was wounded as a result of hostile action in Vietnam.

The applicant's name does not appear on the Vietnam Casualty Roster.

The applicant's Narrative Summary of his Medical Evaluation Board, dated March 1973, makes no mention of any wounds sustained as a result of hostile action in Vietnam.

There are no orders for the Combat Infantryman Badge in the available records.

The applicant's DA Form 66 (Officer Qualification Record) shows he was assigned to Headquarters and Headquarters Company, 57th Transportation Battalion in military occupational specialty (MOS) 2162 (Operations and Training Staff Officer) from 13 April 1971 through 15 August 1971 in Vietnam. His DA Form 66 shows he was assigned to Headquarters and Headquarters Company, 184th Ordnance Battalion in MOS 4515 (Operations Officer/Special Assistant for Automated Data Processing Security) and MOS 2700 (Commander of the Headquarters and Headquarters Company) for the remainder of his assignment in Vietnam.

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.

Army Regulation 600-8-22 provides, in pertinent part, that the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry MOS. They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. It states that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for a 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 (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

Army Regulation 15-185 provides further guidance for reconsideration requests 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 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. There is no evidence of record, and the applicant has provided no evidence, which shows that he sustained a lower back injury or head trauma prior to his discharge from the Army on 12 February 1974.

2. Evidence of record shows the applicant was granted a physical disability discharge for schizophrenic reaction, not for a back or head injury. There is no evidence to show he was even unfit to perform his military duties due to a back or head injury.

3. After review of all the evidence in this case and the latest arguments, the Board determined that the applicant has presented no argument or evidence which is sufficient to reverse the previous decisions regarding the applicant's physical disability discharge rendered by the ABCMR in Docket Number AC76-07941 on 27 July 1977 or Docket Number AR1999022787 on 2 December 1999.

4. There is no evidence of record, and the applicant has provided no evidence, which shows that he was wounded or treated for wounds sustained 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.

5. Although the applicant contends that he is entitled to the Combat Infantryman Badge, evidence of record shows he served in MOS 2162 (Operations and Training Staff Officer), MOS 4515 (Operations Officer/Special Assistant for Automated Data Processing Security) and MOS 2700 (Commander of the Headquarters and Headquarters Company) during his assignment in Vietnam.

6. There is no evidence that the applicant was awarded an infantry MOS, served in an infantry MOS, or served in active ground combat while an assigned member of an infantry company in Vietnam. Therefore, the Board determined that there is insufficient evidence on which to base award of the Combat Infantryman Badge in this case.

7. 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.

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

FNE____ MVT_____ ENA_____ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2003084989
SUFFIX
RECON	Yes
DATE BOARDED	20030715
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.0200
2.	107.0015
3.	107.0111
4.
5.
6.