IN THE CASE OF:	

		BOARD DATE:	  9 December 2008

		DOCKET NUMBER:  AR20080012683 


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 the Certificate of Discharge issued to her deceased spouse, a former service member (FSM), be corrected to show he received an honorable discharge versus a general discharge.  She also requests that the FSM be awarded the Purple Heart.

2.  The applicant states that she has attempted for over 31 years to obtain an honorable discharge certificate for her husband.  However, when the government finally sent the discharge certificate, it was a general discharge certificate rather than an honorable discharge certificate.  She states that her husband served in the Republic of Vietnam and was wounded, but he never received the award of the Purple Heart.  She states that for the sake of her son and daughter, she would like for her husband to be awarded the Purple Heart and receive an honorable discharge certificate.

3.  The applicant provides a copy of the FSM's separation document (DD Form 214, Armed Forces of the United States Report of Transfer or Discharge); DD Form 257A (General Discharge Certificate), dated 10 June 2003; Certificate of Death with Autopsy Report; a Certificate of Recognition; a letter from the Veterans Administration, Albuquerque, New Mexico, dated 1 April 1969; and a Certificate of Eligibility from New Mexico Veterans Service Commission for Tax Exemption, dated 14 November 1972.


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 FSM's military personnel record shows he was inducted into the Army of the United States on 28 November 1966.  At that time he incurred a 6-year statutory military service obligation (MSO), which established 27 November 1972 as the expiration of his MSO.  He had completed the necessary training and was awarded military occupational specialty 11B (Infantryman).  He served on active duty until he was honorably transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training), St. Louis, Missouri, on 27 November 1968.  He had completed 2 years of total active service.

3.  The FSM's DD Form 214 shows he was honorably transferred to the USAR Control Group (Annual Training) under the provisions of Army Regulation
635-200 (Personnel Separations), chapter 2, section VI, with a Separation Program Number of 201 which represents expiration term of service on
27 November 1968.  His service was characterized as honorable.

4.  The Certificate of Discharge that the applicant submitted shows that the FSM was issued a General Discharge Certificate on 10 June 2003.

5.  USAR Personnel Command Orders, dated 30 July 2003, have no Orders Number assigned.  These Orders show that the FSM's effective date of discharge was 27 November 1968 and his characterization of service was Under Honorable Conditions (General Discharge).  The authority cited for the FSM's discharge was Title 10, U.S. Code, section 1552, which is the codification of the law which established the Board.  (The Board's staff was unable to locate any ABCMR directive which would have caused these orders to be published).



6.  The Certificate of Death and the Autopsy Report that the applicant submitted show that the FSM's cause of death was accidental (crushed chest), which took place at Santa Fe, New Mexico.  The FSM was dead on arrival at St. Vincent Hospital on 19 June 1972.

7.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the FSM's DD Form 214 shows the awards of the National Defense Service Medal, Good Conduct Medal, Combat Infantryman Badge, Air Medal, Republic of Vietnam Campaign Medal, Vietnam Service Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), and 1 Overseas Service Bar.  However, it does not show the award of the Purple Heart.

8.  A review of the Republic of Vietnam Casualty Roster does not show the FSM's name listed among those wounded.

9.  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 a medical officer, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The FSM's DD Form 214 shows that he was inducted into the Army of the United States on 28 November 1966.  At that time he incurred a 6-year statutory MSO, which established 27 November 1972 as the expiration of his MSO.  When the FSM was honorably released from active duty on 27 November 1968, he was not discharged.  As such, he was properly not issued an Honorable Discharge Certificate at the time.

2.  The FSM would not have been issued an Honorable Discharge Certificate until the expiration of his MSO.  Because the FSM died prior to the expiration of his MSO, he would not have been issued a discharge certificate (you cannot discharge someone who is deceased).

3.  USAR Command Orders, dated 30 July 2003 have no Orders Number assigned.  As such, it must be presumed that the orders were prepared in error and the error was caught before the orders were assigned an order number.  Due to the proximity of the date of these orders to the date used on the FSM's DD Form 257A, 10 June 2003, it must be presumed that both the orders and certificate were generated by the same mistake.

4.  In summary, the applicant's husband's records show that he served honorably on active duty, was honorably released from active duty, and if he hadn't passed away prior to the termination of his MSO, he would have been issued an Honorable Discharge Certificate.

5.  It is regretted that the documents which were obviously issued in error were made available to the applicant.  In order to prevent this from happening in the future, it would be appropriate to now remove these erroneous documents.

6.  As for the award of the Purple Heart, there is no evidence in the FSM's record which shows he was wounded as a result of hostile action and was treated for his injury by a medical officer.  Also, his name does not appear on the Republic of Vietnam Casualty Roster.  Therefore, the applicant is not entitled to correction of the FSM's records to show the Purple Heart.

7.  Evidence shows that the applicant's records contain administrative errors which do 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

__X_____  ___X____  ___X___  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 errors in the records of the individual concerned should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to remove USAR Personnel Command Orders, dated 30 July 2003 and the DD Form 257A (General Discharge Certificate), dated 10 June 2003 from the FSM's military records.



      _________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)                                         AR20080012683



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ABCMR Record of Proceedings (cont)                                         AR20080012683



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