IN THE CASE OF:	  

	BOARD DATE:	  20 May 2008

	DOCKET NUMBER:  AR20080002785


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant, on three separate applications, requests:

	a.  correction of his records to show he was medically discharged or retired under honorable conditions; 

	b.  award of the Medal of Honor; and

	c.  award of the Combat Medical Badge, the Army Commendation Medal with Oak Leaf Cluster, the Silver Star, and the Distinguished Service Cross with Oak Leaf Cluster. 

2.  The applicant states:

	a.  he has sufficient medical proof and examination of combat disabilities to show that the Army should have granted him a medical discharge or retirement under honorable conditions; 

	b.  his combat record shows that, as a medic, he was involved in 4 separate acts in a 15-hour period.  His "silent" record proves that he re-crossed an exploding ammunition dump after evacuating Special Forces to safety and exposed himself to enemy fire numerous times; and 

	c.  his combat record as a medic shows he was involved in a 15-hour combat episode and 4 direct separate actions, and saved numerous lives while exposed to shrapnel from an exploding ammunition depot, 30 to 40 yards away.  He was also commended by two General Officers.  His acts would result in a definite Silver Star in today's standards.

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  18th Engineer Brigade General Orders Number 19, dated 15 January 1968, awarding him the Bronze Star Medal with "V" Device for exceptionally valorous actions against a hostile force on 15 November 1967.

	b.  A newspaper article, dated 14 July 2007, describing how a World War II (WW II) veteran won full disability after 20 years. 

	c.  Extract of medical records (progress notes), dated 28 November 2006.

	d.  Department of Veterans Affairs (VA) Form 2507 (Compensation and Pension Exam Report), dated 21 August 2007 [Peripheral Nerves, Neurological Disorders, and Post Traumatic Stress Disorder (PTSD)]; and 11 December 2007 (Ear Disease).

	e.  Internet Printouts, on miscellaneous dates, pertaining to Department of Defense officials' testimonies before the Senate Armed Services Committee. 

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 records show that he enlisted in the Regular Army for a period of 3 years on 24 May 1965.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 91B 
(Medical Specialist).  He was honorably discharged on 23 May 1968.  The highest rank/grade he attained during his military service was specialist five (SP5)/E-5.

3.  The applicant’s records show he served in the Republic of Vietnam from 22 February 1967 to 15 February 1968.  He was assigned to Headquarters and Headquarters Company, 299th Engineer Battalion (Combat). 

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), of the applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), shows he was awarded the National Defense Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Vietnam Service Medal with one bronze service star, the Bronze Star Medal with "V" Device, and the Expert Marksmanship Qualification Badge with Rifle Bar.  Item 24 does not show award of the Medal of Honor, the Combat Medical Badge, the Army Commendation Medal with Oak Leaf Cluster, the Silver Star, or the Distinguished Service Cross with Oak Leaf Cluster.

5.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 (Enlisted Qualification Record) does not show award of the Medal of Honor, the Combat Medical Badge, the Army Commendation Medal with Oak Leaf Cluster, the Silver Star, or the Distinguished Service Cross with Oak Leaf Cluster.

6.  There are no general orders in the applicant's records that show he was awarded the Medal of Honor, the Combat Medical Badge, the Army Commendation Medal with Oak Leaf Cluster, the Silver Star, or the Distinguished Service Cross with Oak Leaf Cluster.

7.  During the processing of this case, a member for the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the United States Army Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any award of the Medal of Honor, the Combat Medical Badge, the Army Commendation Medal with Oak Leaf Cluster, the Silver Star, or the Distinguished Service Cross with Oak Leaf Cluster orders on file for the applicant.

8.  The applicant was awarded the Bronze Star Medal for Heroism for exceptionally valorous actions against a hostile force on 15 November 1967, while in the Republic of Vietnam.  General Orders Number 19, Headquarters, 18th Engineer Brigade, dated 15 January 1968, cited the following reason:

On 15 November 1967, at about 1600 hours, the 15th Engineer Company (Light Equipment) and an adjacent Ammunition Supply Point, located at Dak To, Republic of Vietnam, were attacked by enemy mortars.  Fires immediately broke out in the Ammunition Supply Point causing several secondary explosions.  At approximately 1700 hours, one of the two men fighting the fires was wounded by an exploding round.  At the cry "Medic," [Applicant] left the safety of his bunker and made his way to the wounded man.  He then assisted the wounded man over a distance of three-quarters of a mile through exploding rounds and ever present shrapnel, to an evacuation point.  At 2145 hours, a tremendous blast rocked the area, scattering more unexploded ammunition into the 15th Engineer Company area which was already covered with numerous unexploded rounds.  The concussion of the blast collapsed several bunkers in the area wounding and trapping many individuals.  [Applicant], again left the safety of his bunker to assist in aiding the wounded, and in digging out of personnel from the collapsed building.  He then assisted in carrying two of the more critically wounded men to the Medical Armored Personnel Carrier. 

9.  The applicant's records show that he underwent a medical examination at White Sands Missile Range, New Mexico, on 28 March 1968.  He completed the Standard Form 89 (Report of Medical History) and indicated that he did not suffer any injuries or wounds, during his military service.  The attending physician completed the Standard Form 88 (Report of Medical Examination) and remarked that the applicant was qualified for separation.

10.  On 23 May 1968, the applicant certified that there had been no change in his medical condition.

11.  Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the Medical Evaluation Board (MEB) determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a Physical Evaluation Board (PEB).

12.  Paragraph 3-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

13.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of regulation states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit. 

14.  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 higher VA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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. 

15.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Medal of Honor is awarded by the President in the name of Congress to a person who, while a member of the Army, distinguishes himself conspicuously by gallantry and intrepidity at the risk of his life above and beyond the call of duty while engaged in an action against an enemy of the United States.  The deed 
performed must have been one of personal bravery or self-sacrifice so conspicuous as to clearly distinguish the individual above his comrades and must have involved risk of life.  Incontestable proof of the performance of the service is required.

16.  Army Regulation 600-8-22 provides, in pertinent part, that the Distinguished Service Cross is awarded to a person, who while serving in any capacity with the Army, distinguished himself or herself by extraordinary heroism while engaged in action against an enemy of the United States not justifying award of the Medal of Honor.  The act or acts of heroism must have been so notable and have involved risk of life so extraordinary as to set the individual apart from his or her comrades.

17.  Army Regulation 600-8-22 provides, in pertinent part, that the Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

18.  Army Regulation 600-8-22 provides that the Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguished himself or herself by heroism, meritorious achievement or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

19.  Army Regulation 600-8-22 provides, in pertinent part, that the Combat Medical Badge is awarded to medical department personnel (colonel and below) who are assigned or attached to a medical unit of company or smaller size that is organic to an infantry unit of brigade, regimental or smaller size which is engaged in active ground combat.  Battle participation credit is not sufficient; the infantry unit must have been in contact with the enemy and the Soldier must have been personally present and under fire during such ground combat.

20.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) governed the awards program in the Army theater of operations during the Vietnam conflict.  This regulation did not provide specific guidance for award of the Combat Medical Badge.  However, USARV Regulation 672-1 did provide detailed guidance on award of the Combat Infantryman Badge which is awarded to infantry personnel based essentially the same criteria for award of the Combat Medical Badge to medical aid personnel assigned to infantry units.  The regulation provided that the Combat Infantryman Badge was authorized for award to infantry personnel who were members of infantry platoons and squads in armored cavalry squadrons and regiments. 

21.  Title 10 of the United States Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

22.  Review of the applicant's records indicates his entitlement to additional awards that are not shown on his DD Form 214.

23.  12.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the applicant is entitled to award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 8, dated 1974. 

DISCUSSION AND CONCLUSIONS:

1.  With respect to the applicant's contention that he should have been medically retired, there is no evidence in the available records and the applicant did not provide substantiating evidence that shows he suffered injuries, wounds, or any medical conditions, during his military service, that would have warranted a medical discharge. Furthermore, there is no evidence that the applicant was evaluated for medical fitness or underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 

2.  The applicant's VA examination report, dated 21 August 2007, shows the applicant is disabled with a 70 percent service-connected disability for PTSD,    10 percent for tinnitus, 20 percent for diabetes, 10 percent for paralysis of median nerve, and 10 percent for paralysis of sciatic nerve.

3.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation.  The Department of Veterans Affairs evaluates veterans throughout their lifetime, adjusting the percentage of disability 
based upon that Agency's examinations and findings.  Any changes in the severity of a disability should be referred to that Agency.  The applicant's VA examination reports show he was diagnosed and evaluated by the VA some 35 years after his service in the Republic of Vietnam.  There is no evidence that any of the conditions diagnosed by the VA existed during his military service.  Therefore, the applicant's discharge was appropriate and he is not entitled to a medical discharge with retirement benefits.

4.  With respect to the applicant's awards, the applicant’s records show that he was clearly cited for his valorous actions in the Republic of Vietnam.  A decision was made to award him the Bronze Star Medal with "V" Device.  It is not known whether the applicant's immediate commander recommended he be awarded a Medal of Honor, a Distinguished Service Cross, or a Silver Star, and the recommendation was disapproved in favor of a Bronze Star.  Conversely, it is not known whether he was originally recommended for an Army Commendation Medal for Valor, but upgraded to a Bronze Star Medal with "V" Device by the approving authority.

5.  The decision of whether to award an individual a decoration and which decoration to award is a judgment call made by the commander having award approval authority.  Commanders at the time of the act, or shortly thereafter, determined that the applicant's actions were so extraordinary and so noteworthy as to warrant award of the Bronze Star Medal with "V" Device.  Almost forty years have passed since the events of 15 November 1967 and the ABCMR is not privy to the decision process used that time.

6.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required, for each award requested.  The evidence of record shows that:

	a.  the applicant's record is void of a recommendation for award of the Medal of Honor; there are no general orders that show the applicant was awarded the Medal of Honor; and the applicant did not provide any incontestable proof of the performance of the service that shows he distinguished himself conspicuously by gallantry and intrepidity at the risk of his own life above and beyond the call of duty while engaged in an action against an enemy of the United States;

	b.  the applicant's record is void of a recommendation for award of the Distinguished Service Cross; there are no general orders that show the applicant was awarded the Distinguished Service Cross; and the applicant did not provide 
evidence that shows he distinguished himself by extraordinary heroism while engaged in action against an enemy of the United States not justifying award of the Medal of Honor, or that his act of heroism was so notable and involved risk of life so extraordinary as to set the applicant apart from his or her comrades;

	c.  the applicant's record is void of a recommendation for award of the Silver Star; there are no general orders that show the applicant was awarded the Silver Star; and the applicant did not provide evidence that he distinguished himself for gallantry, spirited and conspicuous acts of heroism and courage performed with marked distinction, in action against the enemy;

	d.  the applicant's record is void of a recommendation for award of the Army Commendation Medal; there are no general orders that show the applicant was awarded the Army Commendation Medal; and the applicant did not provide evidence that shows he distinguished himself by heroism, meritorious achievement or meritorious service; and

	e.  the Combat Medical Badge may be awarded to medical personnel,  assigned or attached to a medical unit of company or smaller size that is organic to an infantry unit of brigade, regimental or smaller size which is engaged in active ground combat.  Battle participation credit is not sufficient; the infantry unit must have been in contact with the enemy and the Soldier must have been personally present and under fire during such ground combat.  There is no evidence that the applicant was assigned to a medical unit that was organic to an infantry unit that engaged the enemy or was engaged by the enemy in active ground combat. 

7.  While the available evidence is insufficient for awarding the applicant the Medal of Honor, the Army Commendation Medal with Oak Leaf Cluster, the Silver Star, or the Distinguished Service Cross with Oak Leaf Cluster, this in no way affects the applicant’s right to pursue his claim for those awards Star by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

8.  General Orders awarded the applicant’s unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation which is not shown on his records.  Therefore, he is entitled to have his records corrected to show this unit award.

9.  Evidence shows that the applicant’s records contain administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management 
Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show the Republic of Vietnam Gallantry Cross with Palm Unit Citation.



								XXX
      _______________________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


ABCMR Record of Proceedings (cont)                                         AR20080004539



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ABCMR Record of Proceedings (cont)                                         AR20080002785



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