RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         11 JANUARY 2005
      DOCKET NUMBER:  AR20040000023


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Ms. Carol Kornhoff                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his records be corrected to reflect award
of the Purple Heart.  He also asks that his records be corrected to show
that he was medically retired.

2.  The applicant states that he was “discharged honorably due to medical
conditions at 100% disabled, for 10 years, and [he] feels [he] should have
been medically retired since [his] medical problems were the result of an
injury sustained in combat.”

3.  The applicant provides a copy of orders awarding him the Purple Heart.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 28 August 1969.  The application submitted in this case
is dated
8 April 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  Records available to the Board indicate that the applicant was inducted
and entered active duty on 29 August 1967.  He was trained as an
infantryman and assigned to the 6th Battalion, 31st Infantry at Fort Lewis,
Washington, when the unit was deployed to Vietnam in April 1968.

4.  On 27 October 1968 he was awarded an Air Medal for meritorious
achievement.  Orders issued by the 9th Infantry Division confirmed the
award.  However, the award was omitted from his separation document.

5.  On 15 December 1968 the applicant was awarded the Purple Heart for
wounds sustained on 15 December.  The award was confirmed in orders issued
by the 3rd Surgical Hospital.  That award was also omitted from his
separation document.

6.  In April 1969 the applicant returned to the United States.  He was
assigned to a cavalry unit at Fort Hood, Texas.  In July 1969 he underwent
a separation physical examination.  The applicant indicated that he was in
good health although he had been treated for a concussion and multiple
fragment wounds while in Vietnam in December 1968.  The examining physician
found the applicant medically qualified for separation with a physical
profile of 1-1-1-2-1-1.  The “2” represented a decrease in his hearing but
the separation physical did not indicate that it warranted referral for
disability processing.

7.  On 28 August 1969 the applicant was released from active duty, in pay
grade E-4, at the conclusion of his service contract.  His service was
characterized as honorable.

8.  There were no service medical records available to the Board beyond the
applicant’s separation physical examination.  Documents associated with any
Department of Veterans Affairs ratings were also not available to the
Board.

9.  Army Regulation 40-501, in effect at the time, provided that for an
individual to be found unfit by reason of physical disability, he must be
unable to perform the duties of his office, grade, rank or rating.  It also
stated that performance of duty despite an impairment would be considered
presumptive evidence of physical fitness.

10.  Title 38, United States Code, sections 1110 and 1131, permit the
Department of Veterans Affairs (VA) to award compensation for disabilities
which were incurred in or aggravated by active military service.  However,
an award of a VA rating does not establish error or injustice in the basis
for separation from the Army.  An Army disability rating is intended to
compensate an individual for interruption of a military career after it has
been determined that the individual suffers from an impairment that
disqualifies him or her from further military service.  The VA, which has
neither the authority, nor the responsibility for determining physical
fitness for military service, awards disability ratings to veterans for
conditions that it determines were incurred during military service and
subsequently affect the individual’s civilian employability.  Furthermore,
unlike the Army, the VA can evaluate a veteran throughout his or her
lifetime, adjusting the percentage of disability based upon that agency’s
examinations and findings.

11.  A review of Department of the Army Pamphlet 672-3 (Unit Citation and
Campaign Participation Credit Register) notes the applicant’s unit was
credited with participating in four designated campaigns (Vietnam
Counteroffensive Phases Iv, V, and VI, and TET 69 Counteroffensive) during
the applicant’s period of assignment.  Four bronze service stars, vice the
two bronze service stars currently on the Vietnam Service Medal recorded on
his separation document, should reflect his campaign participation.  The
unit was also awarded the three awards of the Republic of Vietnam Gallantry
Cross Unit Citation with Palm, a Republic of Vietnam Civil Actions Honor
Medal First Class Unit Citation, and a Valorous Unit Award, during his
tenure with the organization.  The unit awards were also omitted from his
separation document.

12.  Army Regulation 672-5-1, in effect at the time when the service member
was discharged, required that throughout a qualifying period of service for
award of the Good Conduct Medal the enlisted person must have had all
“excellent” conduct and efficiency ratings and no convictions by a court-
martial.  This period is 3 years except in those cases when the period for
the first award ends with the termination of a period of Federal military
service.  With the publication of the new Army Regulation 672-5-1, in 1974,
the requirement for all excellent conduct and efficiency ratings was
dropped and an individual was required to show that he/she willingly
complied with the demands of the military environment, had been loyal and
obedient, and faithfully supported the goals of his organization and the
Army.  Today, Army Regulation 600-8-22, which replaced Army Regulation 672-
5-1, notes that there is no automatic entitlement to the Army Good Conduct
Medal and disqualification must be justified.  Current practice requires
that the commander provide written notice of nonfavorable consideration and
permits the individual to respond.

13.  The applicant’s conduct and efficiency ratings throughout his military
service were excellent, and he had no record of any disciplinary actions or
incidents of misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The evidence confirms that the applicant was awarded the Purple Heart.
His records should be corrected accordingly.

2.  The evidence also confirms that the applicant was awarded an Air Medal
and that he is entitled to four bronze service stars, vice two bronze
service stars on his Vietnam Service Medal, a Valorous Unit Award, the
Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation,
and three awards of the Republic of Vietnam Gallantry Cross Unit Citation
with Palm.  His records should be corrected to reflect those decorations as
well.

3.  The applicant completed a qualifying period of service for award of the
Army Good Conduct Medal on 28 August 1969.  There is no evidence his
commander ever disqualified him from receiving the award and no evidence of
any misconduct which would justify denying him the award.  In view of the
foregoing, the Board concludes that the applicant met the basic
qualifications for award of the Army Good Conduct Medal and it would be
appropriate and in the interest of equity to award him that decoration for
the period 29 August 1967 to 28 August 1969.

4.  There is no evidence, and the applicant has not provided any, that he
was medically unfit for continued military service at the time he was
released from active duty in 1969.  The evidence shows that while he may
have been wounded in December 1968 he continued to serve without problems
for nearly 9 more months until he was released from active duty.  The
evidence of record indicates 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.  Although the applicant does not provide evidence that he is received
disability benefits from the Department of Veterans Affairs, such benefits
would not necessarily demonstrate any error or injustice by the Army.  The
VA, operating under its own policies and regulations, assigns disability
ratings as it sees fit.  Any rating action by the VA does not compel the
Army to modify its reason or authority for separation.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___LS __  ___JM  __  ___CK __  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by:

      a.  showing that he was awarded the Purple Heart and an Air Medal;


      b.  showing that he is entitled to four bronze service stars, vice two
bronze service stars on his Vietnam Service Medal, a Valorous Unit Award,
the Republic of Vietnam Civil Actions Honor Medal First Class Unit
Citation, and three awards of the Republic of Vietnam Gallantry Cross Unit
Citation with Palm; and


      c.  awarding him the Army Good Conduct Medal for the period 29 August
1967 through 28 August 1969.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
disability retirement.




                            _____ Linda Simmons______
                                      CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040000023                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050111                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |PARTIAL GRANT                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107.00                                  |
|2.                      |108.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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