RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2008
	DOCKET NUMBER:  AR20080001298 


	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. C. M.

Director

Ms. J. A. W.

Analyst

The following members, a quorum, were present:


Mr. T. S. K.

Chairperson

Mr. J. L. P.

Member

Mr. D. T.

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, award of a disability rating greater than 
10 percent and/or award of the Purple Heart. 

2.  The applicant states, in effect, that he was wounded in Vietnam, he has problems with his legs and he was exposed to Agent Orange.  He had to see a dermatologist for years.  He states that “on record it shows his face as non-disfiguring”; however, he has a scar that is more noticeable as he ages.  He would like a better than 10 percent disability rating to be eligible for benefits and “the best would be to get a Purple Heart.”  He adds that he has problems with his legs and would like medical attention at the VA (Department of Veterans Affairs) hospital.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a copy of a VA claim, dated 10 August 1971, in support of his request. 

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.  The applicant's record shows he enlisted in the Regular Army on 23 January 1968.  He successfully completed basic combat training and advanced individual training at Fort Dix, New Jersey.  On completion of his training, he was awarded the military occupational specialty (MOS) 36C (Lineman).  He was promoted to pay grade E-5 on 25 April 1969.

3.  The applicant served in Vietnam from 15 July 1968 to 7 July 1969.  He served until he was honorably released from active duty on 22 January 1971. 


4.  The applicant’s DD Form 214 shows he was awarded the National Defense Service Medal; the Vietnam Service Medal; the Republic of Vietnam Campaign 
Medal; two Overseas Service Bars; the Expert Marksmanship Qualification Badge, with Rifle Bar (M-16); and the Sharpshooter Marksmanship Qualification Badge, with Rifle Bar (M-14).  His DD Form 214 does not show any additional awards.

5.  There are no orders in the applicant's available personnel records which show that he was awarded the Purple Heart. 

6.  The applicant's DA Form 20 (Enlisted Qualification Record) does not show an entry in item 40 (Wounds) and the Purple Heart is also not shown as an authorized award in item 41 (Awards and Decorations). 

7.  The applicant's name does not appear on the Vietnam Casualty List for a wound received as a result of hostile action. 

8.  The ADCARS (Awards and Decorations Computer Assisted Retrieval System) failed to show that orders were published awarding the applicant the Purple Heart while serving in Vietnam.

9.  The applicant provided a copy of his VA claim, dated 10 August 1971, which shows his disabilities such as otitis media (inflammation of the middle ear), left, and scar, facial nondisfiguring, were service connected but they were less than 10 percent disabling and compensation was not payable.  His service medical record show he was treated for a stomach condition and condition of both legs.  At the time of his last examination, there was no indication of any disability that might have resulted from these conditions.

10.  Item 38 (Record of Assignments), of the applicant's DA Form 20, shows the entry "EXC" (Excellent) for his conduct and efficiency.  There is no evidence of derogatory information contained in the available records.  There is no evidence the applicant was subjected to non-judicial punishment or courts-martial and that his commanders took action to deny him award of the Army Good Conduct Medal.

11.  Army Regulation 600-8-22 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. 

12.  Army Regulation 600-8-22 provides that the Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service.  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.  Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified.

13.  The applicant’s DD Form 214 shows entitlement to the Vietnam Service Medal; however, it does not show the three bronze service stars to which he is 
entitled for his campaign participation.  Army Regulation 600-8-22 provides that a
bronze service star is authorized for the Vietnam Service Medal for participation in each campaign. 

14.  Department of the Army Pamphlet 672-3 shows that the applicant's unit was cited for award of the Meritorious Unit Commendation, by Department of the Army General Orders (DAGO) Number 18, dated 1979; and the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation, by DAGO Number 8, dated 1974; while he was assigned to the unit.  

DISCUSSION AND CONCLUSIONS:

1.  There are no orders, and the applicant provided none, awarding him the Purple Heart; he is not listed on the Vietnam Casualty List; and there are no medical records available to show that he was treated for a wound as a result of hostile action.  Therefore, there is an insufficient basis upon which to approve an award of the Purple Heart.

2.  The applicant claims that he was wounded in Vietnam and has problems with his legs and was exposed to Agent Orange; however, he has provided no evidence, and there is none available to the Board, to support his claim that he was wounded in Vietnam and was exposed to Agent Orange or to show that he was awarded the Purple Heart.  

3.  The applicant's VA claim indicated that his service medical records show he was treated for a stomach conditions and condition of both legs.  At the time of his last examination, there was no indication of any disability that might have resulted from these conditions.




4.  The applicant also claims that he was seen for years by a dermatologist, that his face was disfigured, and the scar is more noticeable as he ages.  The applicant's VA claim indicates that he has service-connected disabilities for otitis media, left, and scar, facial nondisfiguring, and that they were service connected and less than 10 percent disabling and compensation was not payable.

5.  The applicant, in effect, would like award of a disability rating greater than 
10 percent.  Eligibility for veteran's benefits (to include VA medical benefits) does not fall within the purview of this Board.  Furthermore, relief is not granted solely for the purpose of gaining VA benefits.  Neither is the Purple Heart awarded solely for the purpose of enabling an individual to obtain eligibility for benefits.  The applicant must meet the stated criteria for award of the Purple Heart.  

6.  The applicant was not awarded the Good Conduct Medal, it appears, more as a result of administrative oversight rather than something that he did to disqualify himself from this award.  He is therefore eligible for award of the Good Conduct Medal for the period 23 January 1968 to 22 January 1971.

7.  The applicant's DD Form 214 shows that he was awarded the Vietnam Service Medal.  While in Vietnam, he participated in three campaigns and he is therefore, entitled to be awarded three bronze service stars to be affixed to his already-awarded Vietnam Service Medal.

8.  The applicant's unit was cited for award of the Meritorious Unit Commendation and the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation, at the time he was a member of the unit.  He is, therefore entitled to correction of his records to show these unit awards.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___TK___  ___JP___  ___DT__  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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he was awarded the Good Conduct Medal for the period 23 January 1968 to 22 January 1971; the Vietnam Service Medal, with three bronze service stars; the Meritorious Unit Commendation; and the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation.

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 his disability rating and award of the Purple Heart and its addition to his DD Form 214.




______T. S. K._____
          CHAIRPERSON