IN THE CASE OF:	

		BOARD DATE:	  21 October 2008

		DOCKET NUMBER:  AR20080012204 


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 requests, in effect, that his reduction from pay grade E-5 to  
E-3 be voided and that he be given the difference in pay that the correction would necessitate.  He also requests all of the awards that he is eligible to receive. 

2.  The applicant states, in effect, that he was not diagnosed or treated for Post-Traumatic Stress Disorder (PTSD) at the time of his military service.

3.  The applicant provides a copy of his separation documents (DD Forms  
214) for the periods ending 9 September 1969 and 23 July 1973; and a Physician’s Assistant Medical Record Progress Note, dated 26 July 2002.  The Progress Note the applicant submitted states that the applicant was treated for chronic PTSD and that his war trauma while on active duty was poorly recognized and recommended that his records be re-evaluated to reinstate his rank to pay grade to E-5.

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 military personnel record shows he enlisted in the Regular Army on 15 May 1967.  He completed the necessary training and was awarded the military occupational specialty (MOS) 91B (Medical Specialist).  

3.  He served with Headquarters and Headquarters Battery (HHB), 7th Battalion, 11th Field Artillery, 25th Infantry Division in the Republic of Vietnam during the period of 19 January 1969 to 9 September 1969.

4.  The applicant was honorably discharged from active duty on 9 September 1969.  He completed 2 years, 3 months, and 25 days of Net Service This Period. He immediately reenlisted on 10 September 1969.

5.  The applicant's record shows a history of nonjudicial punishments (NJPs) between 1967 and 1974 for: failure to report to his appointed place of duty, his work place; being drunk and disorderly; failure to report to his place of duty, (the Alcohol Rehabilitation Center); indulgence of intoxicating liquor; and being incapacitated for the proper performance of duty.  He also was absent without leave (AWOL) for the periods 2 December to 4 December 1970; 5 September to 12 September 1972; 15 October to 16 October 1973; and 18 December to 
20 December 1973.  The applicant was reduced to pay grade E-3, on 19 March 1974.

6.  He served continuously on active duty until he was honorably discharged on 23 July 1974.  He completed 7 years, 1 month, 23 days of Total Service For Pay and accrued 16 days of time lost due to being AWOL.  His highest pay grade held was temporary pay grade E-5.

7.  The applicant's last medical evaluation shows no significant mental illness and that he was in good health upon separation.

8.  Item 6a (Grade, Rate and Rank) of his DD Form 214 ending in the period  
23 July 1974 shows the entry "PFC" and in item 3b (Pay Grade) shows the entry "E-3."  In addition, Item 7 (Date of Rank) of the same DD Form 214 shows  
"74 03 19."




9.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 ending in the period 23 July 1974 shows the awards he were authorized.  However, it does not show the Republic of Vietnam Gallantry Cross with Palm Unit Citation and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.

10.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in the Republic of Vietnam.  This document shows the unit to which the applicant was assigned, HHB, 7th Battalion, 11th Field Artillery, was cited for an award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 5, dated 1973 and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation based on Department of the Army General Orders Number 51, dated 1971.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his pay grade should be corrected to show  
E-5 and to show any citations and awards he is eligible to receive.

2.  The available evidence shows the applicant had a history of NJPs for: failure to report to his appointed place of duty (the Alcohol Rehabilitation Center); being drunk and disorderly; indulgence of intoxicating liquor; and being incapacitated for the proper performance of duty.  Therefore, the applicant was reduced to pay grade E-3, on 19 March 1974, due to misconduct.  The available evidence does not support that the applicant’s misconduct was caused by a medical condition.   As such, he is not entitled to correction of his records to show pay grade E-5, nor is he entitled to any additional pay.  

3.  The applicant's statement and the Medical Progress Note he submitted concerning PTSD was considered.  However, his record contains no evidence to show he suffered from any medical condition while he was on active duty.  To the contrary, he was found to have no significant mental illness on his separation physical examination.  

4.  Evidence shows the applicant is authorized the awards of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  Therefore, he is entitled to correction of his records to show these unit awards.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  ____X___  ___X___  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 the awards of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class 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 restoring the applicant to pay grade E-5 with entitlement to additional pay.




      _______ _  X _______   ___
               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)                                         AR20080012204



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080012204



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1