RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 December 2007
	DOCKET NUMBER:  AR20070010786 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. John N. Slone

Chairperson

Ms. Marla J. N. Troup

Member

Mr. Thomas M. Ray

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, in effect, correction of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) to show award of the Purple Heart for wounds received in the Republic of Vietnam. 

2.  The applicant states that it has been more than 30 years and he does not have his Purple Heart. 

3.  The applicant provides copies of his DD Form 214; citation for award of the Army Commendation Medal; and page number one of a medical report from the Birmingham Veterans Affairs Medical Center (VAMC), regarding his examination on 23 October 2006.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 20 November 1967, the applicant enlisted in the Regular Army for 3 years. He completed his initial training and was awarded military occupational specialty 11B1O (Light Weapons Infantryman).

3.  On 17 May 1968, the applicant was assigned for duty as an assistant machine gunner with 1st Battalion, 8th Infantry Regiment, 4th Infantry Division, in the Republic of Vietnam.  On 27 August 1968, he was reassigned within the battalion as a rifleman.  On 14 October 1968, he was further assigned for duty as a scout observer with the 58th Infantry Regiment.  On 28 December 1968, he was again assigned for duty as a light weapons infantryman with 1st Battalion, 10th Cavalry. On 1 May 1969, he was returned to the United States for duty at Fort Gordon, Georgia. 

4.  The applicant’s name does not appear on the Vietnam Casualty Roster.  There is no available evidence showing that he was wounded during his tour of duty in the Republic of Vietnam. 

5.  On 11 July 1969, the applicant was discharged for the convenience of the government with an honorable characterization of service.  He had attained the rank of specialist four, pay grade E4, and had completed 1 year, 7 months, and 22 days of creditable active service. 

6.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214, effective 11 July 1969, lists his awards as the National Defense Service Medal, Combat Infantryman Badge, Vietnam Service Medal, and the Republic of Vietnam Campaign Medal.

7.  On 12 July 1969, the applicant reenlisted in the Regular Army for 4 years.  

8.  On 29 July 1969, the applicant was placed on orders for assignment to the United States Army, Europe.  He was subsequently assigned for duty with 1st Battalion, 87th Infantry Regiment, in the Federal Republic of Germany.

9.  On 31 March 1970, charges were preferred under the Uniform Code of Military Justice for assaulting a noncommissioned officer; for willfully failing to obey a lawful order; for being disrespectful in language towards a superior noncommissioned officer; and for stealing private property valued at $47.50.

10.  On 14 May 1970, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

11.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   
12.  On 22 June 1970, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 24 June 1970, the applicant was discharged accordingly.  He had completed a total of 2 years, 7 months, and 5 days of creditable active military service.

13. Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 contains the entry “NA.”

14.  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 by military medical personnel, and the medical treatment must have been made a matter of official record.  

15.  The VAMC examination of the applicant on 23 October 2006 indicates that the applicant had a healed over shrapnel wound to his left forearm and that he suffered intermittent numbness and difficulty with lifting objects.  The report does not state when or under what circumstances the applicant incurred the wound.

DISCUSSION AND CONCLUSIONS:

1.  There are no general orders that show the applicant was awarded the Purple Heart.  The applicant's name is not listed on the Vietnam Casualty Roster.  The applicant has not provided any evidence showing that he was wounded as a result of enemy action.  

2.  The VAMC report of medical examination does not sufficiently show that the applicant’s wound as incurred as the result of enemy action.

3.  Based on the above, the applicant's request for award of the Purple Heart should not be granted.








BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JNS____  __MJNT_  __TMR __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




_   _ John N. Slone ____
          CHAIRPERSON


INDEX

CASE ID
AR
SUFFIX

RECON
 
DATE BOARDED
20071218
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
  . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
107
2.

3.

4.

5.

6.