IN THE CASE OF:	  

		BOARD DATE:	  9 December 2008

		DOCKET NUMBER:  AR20080014185 


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, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his service in Vietnam and to show that he was awarded the Purple Heart.

2.  The applicant states, in effect, that after reenlistment, he was sent on orders to Vietnam from 1969 to 1971.  In Vietnam he was wounded by the enemy and was life-flighted to the 65th General Hospital in Tokyo, Japan.  He was in the hospital for over 5 months and was sent back to Fort Jackson, South Carolina, where he was eventually discharged.  He adds that he recently obtained his military discharge and realized that his service in Vietnam and Purple Heart were missing.

3.  The applicant provides no additional documentations 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 13 January 1969.  He was trained as an armor crewman in military occupational specialty 11E.  He served in Germany from 18 June 1969 to 28 October 1969.  He was promoted to private first class/E-3 effective 15 July 1969.  He served until he was honorably discharged on 28 October 1969 for immediate reenlistment.

3.  The applicant’s DD Form 214, dated 28 October 1969, shows he was awarded the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bars (M-14 and M-16).  His DD Form 214, dated 28 October 1969, does not show any additional awards.

4.  Item 22c (Foreign and/or Sea Service), of his DD Form 214, dated 28 October 1969, shows the entry, "00 04 11" (4 months and 11 days).

5.  The applicant reenlisted on 29 October 1969.  He served in Vietnam from 29 November 1969 to 28 July 1970.  He served until he was discharged under other than honorable conditions on 28 January 1972 at Fort Jackson, South Carolina.

6.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214, dated 28 January 1972, shows the entry "NONE."

7.  Item 22c of his DD Form 214, dated 28 January 1972, is blank.

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

9.  The applicant's name does not appear on the Vietnam casualty list for a wound received as a result of hostile action.

10.  The Awards and Decorations Computer-Assisted Retrieval System failed to show that orders were published awarding the applicant the Purple Heart.

11.  There is no evidence in the applicant's records to show that he was wounded by the enemy while serving in Vietnam or was life-flighted to the 65th General Hospital in Tokyo, Japan.  There also is no evidence to show that he was in the hospital for over 5 months.
12.  Army Regulation 635-5 (Separation Documents) establishes the policies and procedures for completion and distribution of the DD Form 214.  In pertinent part, it provides that item 30 (Remarks) is used for entries required by Department of the Army Headquarters for which a separate block is not available and for completing entries that are too long for other blocks.  Department of the Army issued guidance to report service in Vietnam, Indochina, and Korea in item 30 of the DD Form 214.

13.  This same regulation states that foreign service performed during the period covered by the DD Form 214 will be entered in item 22c.  The regulation also states that the amount of foreign service will be taken from the Soldier’s Enlisted Qualification Record, or if necessary, verified from the Soldier’s Military Personnel Records Jacket.

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

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant served in Vietnam from 29 November 1969 to 28 July 1970.  Item 22c of his DD Form 214, dated 28 January 1972, is blank.  The remarks column of his DD Form 214, dated 28 January 1972, fails to show this service.  He is therefore entitled to correction of item 22c of his DD Form 214 to show the entry "0 8 0" (8 months) and item 30 of his DD Form 214, dated 28 January 1972, to show the entry "Vietnam 29 November 1969 to 28 July 1970."

2.  To be awarded the Purple Heart, substantiating evidence must be presented to show that the Soldier was wounded as a result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

3.  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.

4.  The applicant claims, in effect, that he was wounded by the enemy while serving in Vietnam and was life-flighted to the 65th General Hospital in Tokyo, Japan.  He alleges to have been hospitalized for 5 months and was sent back to Fort Jackson where he was eventually discharged.  However, he has provided no evidence and there is none available to the Board to support his claim.  The evidence does show that he was discharged at Fort Jackson, South Carolina.

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: 

	a.  by showing the entry "0 8 0" in item 22c of his DD Form 214, dated 28 January 1972; and 

	b.  by showing the entry "Vietnam 29 November 1969 to 28 July 1970" in item 30 of his DD Form 214, dated 28 January 1972.

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 award of the Purple Heart and its addition to his DD Form 214, dated 28 January 1972.



      ___________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)                                         AR20080014185



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ABCMR Record of Proceedings (cont)                                         AR20080014185



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