IN THE CASE OF:	  

		BOARD DATE: 	        23 June 2009

		DOCKET NUMBER:  AR20080018419 


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 his records be corrected to show his year of birth as 1946; his place of birth as Fort McClellan, AL; his date of entry onto active duty as 11 February 1963; and that he be awarded the Purple Heart.

2.  The applicant states, in effect, that his 29 May 1968 DD Form 214 (Report of Transfer or Discharge) and the Certificate of Service incorrectly list his year of birth as 1945 and place of birth as New York City, NY; they should be 1946 and Fort McClellan, AL.  He enlisted on 11 February 1963 and reenlisted on 3 April 1964.  He was wounded in Vietnam but his records do not show this wound or award of the Purple Heart.  

3.  The applicant provides copies of a birth certificate, his 29 May 1968 DD Form 214, a 1981 Veterans Administration (VA) rating decision, and a 1981 VA Form 21-2545 (Report of Medical Examination for Disability Evaluation). 

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.  While the information on the Certificate of Service is based on Army records, the actual form is not an Army record and as sure this Board does not have the authority to correct it.  Therefore, it will not be discussed further.  If the applicant wishes to correct this document he should submit a request on a Standard Form 180 to:

National Personnel Records Center
Military Personnel Records
9700 Page Avenue
St. Louis, MO 63132-5100.

3.  The applicant's service medical and dental records are believed to be on permanent loan to the Department of Veterans Affairs and are not available for review.

4.  The available records do not include the applicant's initial enlistment documentation.  However, the record shows he enlisted in the Regular Army on 11 February 1963, completed training, and served on active duty for 1 year, 1 month, and 22 days.  

5.  On 2 April 1964, he was honorably discharged for the purpose of immediate reenlistment.  The applicant's file does not contain a copy of the DD Form 214 issued at this time.

6.  The applicant reenlisted on 3 April 1964 and served until 29 May 1968.

7.  The record shows the applicant served in Vietnam, with two companies of the 1st Battalion, 503rd Infantry Regiment, from 5 May 1965 through 29 December 1965.

8.  The applicant was released from active duty and transferred to the Army Reserve on 29 May 1968.  He had 4 years, 1 month, and 22 days of creditable service with 424 days of lost time due to being absent without leave or in military confinement.  

9.  The 29 May 1968 DD Form 214 lists his authorized awards as: the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Parachutist Badge, and the Combat Infantryman Badge.  It shows his birth year as 1945 and place of birth as New York City, NY.

10.  His DA Form 20 (Enlisted Qualification Record) shows his authorized awards as: the Parachutist Badge, the Combat Infantryman Badge, the Vietnam Service Medal, and the Expert Marksmanship Qualification Badge with Rifle and Mortar Bars.  Block 6 (Date of Birth) shows his birth year as 1946 and block 41 (Wounds) is blank.

11.  With the exception of the applicant's 29 May 1968 DD Form 214, all of the applicant's available documents that list a date of birth and/or birth place show a birth year of 1946 and his place of birth as Fort McClellan, AL.

12.  The birth certificate provided by the applicant shows a date of birth of 9 February 1946 and his place of birth as Fort McClellan, AL. 

13.  The 1981 VA rating decision states that the applicant's award of service connection for a combat wound was based on his statement at the time of the VA medical examination, no service medical records were available.

14.  The VA Form 21-2545 states that the applicant gave a history of residual pain from a gunshot wound to the buttock.  

15.  A review of the Vietnam Causality List failed to locate the applicant's name. 

16.  Army Regulation 635-5 Separation Documents prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  The regulation in effect at the time the applicant was on active duty provided that a separate DD Form 214 was to be issued for each period of service.  Each DD Form 214 was to reflect only that information related to the Soldier's service during the period covered by that DD Form 214.  

17.  Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine if the injury was combat related or not.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant states, in effect, he enlisted on 11 February 1963 and reenlisted on 3 April 1964.  He was born in Fort McClellan, AL not New York City, NY in 1946, not 1945.  He was wounded in Vietnam but his records do not show this wound or award of the Purple Heart.

2.  The applicant served during a period when separate DD Forms 214 were issued for each period of enlistment.  With the exception of the entry for "Other Service," only the information related to the Soldier's current period of service was entered on the DD Form 214.  Therefore, it is not appropriate to correct his second DD Form 214 to reflect his initial date of enlistment. 

3.  The preponderance of evidence shows the applicant was born in 1946 in Fort McClellan, AL.  Therefore, it is appropriate to correct the 29 May 1968 DD Form 214 to reflect this information.

4.  The record does not contain and the applicant has not provide sufficient documentation to support his contention that he received a wound was the result of hostile action, that required treatment by a medical officer, and the medical treatment was made a matter of official record.  Without a record of treatment for a wound sustained as the result of enemy action entitlement to the Purple Heart cannot be established.

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 amending his DD Form 214 to show the applicant's birth year as 1946 and his place of birth as Fort McClellan, AL.

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 changing his date of entry and award of the Purple Heart.  



      ___________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)                                         AR20080018419





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ABCMR Record of Proceedings (cont)                                         AR20080018419



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