IN THE CASE OF:	  

		BOARD DATE:	  27 January 2009

		DOCKET NUMBER:  AR20080019042 

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 records to show that he was awarded the Purple Heart.  The applicant also requests, in effect, that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show the entry "SGT" (sergeant) instead of the entry "SP4" (specialist four) item 5a (Grade, Rate, or Rank) and to show the entry 
"E-5" instead of "E-4" in item 5b (Pay Grade).

2.  The applicant states, in effect, that he believes that he may have been awarded a Purple Heart or should have been awarded one.  He states that he was injured during a rocket attack on his convoy while serving in Vietnam.  He states he was treated in Saigon, Japan, the Philippines, and finally at Fort Lewis, Washington.  He states he was injured in late October or early November 1969 and was discharged shortly after he was hit.  The applicant states that his promotion to E-5 was initiated while he was serving in Vietnam.

3.  The applicant provides a Department of Veterans Affairs Form 21-4138, Statement in Support of Claim, and a copy of his DD Form 214 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 was inducted into the Army of the United States on 10 April 1968.  He was trained as a Mechanical Maintenance Apprentice in military occupational specialty (MOS) 63A.  He was later given the MOS of 64B, Heavy Truck Driver.  He was promoted to SP4/E-4 effective 10 April 1969.

3.  The applicant served in Vietnam from 3 April 1969 to 17 October 1969.  He served until he was honorably released from active duty on 22 January 1970.

4.  The applicant's DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), one overseas service bar, the Expert Marksmanship Qualification Badge with Rifle Bar (M-16) and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-14).  His DD Form 214 does not show any additional awards.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) does not show that the applicant received any wounds that were recorded.

6.  Item 41 (Awards and Decorations) of the applicant’s DA Form 20 does not show that he received a Purple Heart.

7.  There are no orders in the applicant's available personnel records which show that he was awarded the Purple Heart.

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

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

10.  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.
11.  Item 5a of the applicant's DD Form 214 shows the entry "SP4."  Item 5b shows the entry "E-4."  Item 6 (Date of Rank) shows the entry "10 Apr 69" (10 April 1969).

12.  There are no orders in the applicant’s records to show that he was promoted or considered for promotion to E-5.

13.  Item 33 (Appointments and Reductions) of the applicant’s DA Form 20  shows that the applicant’s last promotion before his release from active duty was to SP4/E-4 on 19 April 1969.

14.  There is no evidence and the applicant did not provide any to support his contention that he appeared before a promotion board or that he was placed on a promotion standing list for E-5.

15.  The applicant signed the DD Form 214 dated 22 January 1970 attesting that the information recorded on this official document was correct/complete.

16.  Army Regulation 635-5 (Separation Documents) provides instructions for the preparation of the DD Form 214.  It states, in pertinent part, that items 5a and 5b will be completed to show the active duty grade or rank and pay grade at the time of separation.  It also states that item 6 will be completed to show the date of rank of the promotion to the current pay grade from the most recent promotion order or reduction instrument.

DISCUSSION AND CONCLUSIONS:

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

2.  There are no orders, and the applicant provided none, awarding him the Purple Heart; he is not listed on the Vietnam casualty roster; and there are no medical records available to show that he was treated for a wound as a result of hostile action.  Therefore, there is an insufficient basis upon which to approve an award of the Purple Heart.

3.  The applicant claims that he was injured during a rocket attack while on a convoy in Vietnam; however, he has provided no evidence, and there is none available to the Board, to support his claim that he was injured during the attack on the convoy.
4.  The applicant claims that he was treated in Saigon, Japan, the Philippines, and finally at Fort Lewis, Washington.  He states that he was injured in late October or early November 1969 and was discharged shortly after.  There is no evidence, and the applicant has provided no evidence, to show that he received or sustained any injuries while he served in Vietnam while on active duty.

5.  The applicant believes that he was considered and selected for promotion to E-5 prior to him leaving Vietnam; however, there were no promotion orders in his records substantiating his claim.

6.  The applicant’s DA Form 20 shows that the last promotion for him was to the grade/rank SP4/E-4 on 19April 1969.  No further promotions were listed.

7.  The applicant’s DD Form 214 shows that his grade/rank was SP4/E-4 at the time he was released from active duty.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ____x___  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



      ____________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)                                         AR20080019042



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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