IN THE CASE OF:	  .

		BOARD DATE:	       28 JULY 2009

		DOCKET NUMBER:  AR20090002274 


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, award of the Purple Heart.  The applicant also requests, in effect, that he be retired based on 22 years of military service.

2.  The applicant states, in effect, that he did not receive his Purple Heart for injuries he received in the Republic of Vietnam (RVN).  He also states, in effect, that between his active and inactive military service he has 22 qualifying years for retirement purposes.

3.  The applicant submitted a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of this application.

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 DD Form 214 shows that he enlisted in the Regular Army on 27 February 1968.  He was discharged on 24 March 1969 for the purpose of immediate reenlistment.  He had completed 1 year and 27 days of active military service.

3.  On 25 March 1969, the applicant reenlisted in the Regular Army.

4.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 6 June 1970 to 27 July 1970.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 is blank, indicating that he was not wounded during his tenure of active duty service.

6.  The Vietnam casualty roster does not list the applicant's name.

7.  On 19 January 1973, the applicant was released from active duty and transferred to the U.S. Army Reserve Control Group (Standby).  He completed 3 years, 9 months, and 25 days of active military service during this enlistment.

8.  On 13 February 1973, the applicant enlisted in the Regular Army and served until his discharge on 12 February 1976.  He completed 3 years of active military service during this enlistment for a total of 7 years, 10 months, and 22 days of active military service.

9.  The applicant enlisted in the U. S. Army Reserve on 16 July 1983 and served continuously until his discharge on 15 July 1995.  However, the applicant's AHRC Form 249-2-E (Chronological Statement of Retirement Points) shows that he was only awarded 15 membership points per year for his retirement years beginning 16 July 1983 through 15 July 1995.  This form shows he had a total of 0 years, 0 months, and 0 days of service qualifying for retirement.

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.  Title 10, U.S. Code, sections 12731 through 12739, authorizes retired pay for Reserve Component service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  After 1 July 1949, a qualifying year is one in which a Reserve Soldier earned 50 retirement points or more.  The term "good years" is an unofficial term used to mean years in which 50 or more retirement points are earned during each year, and which count as qualifying years of service for retirement benefits at age 60.

13.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), indicates, in pertinent part, that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but at the time of his discharge in 1995 must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and (3) served the last 8 years of his qualifying service as a Reserve Component Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he is entitled to correction of his record to show award of the Purple Heart and that he had 22 years of service for retired pay were carefully considered.

2.  There is no evidence of record and the applicant has not provided any evidence that shows he was wounded or injured as a result of hostile action or that he was treated for such wounds.  The applicant is not listed on the Vietnam casualty roster.  Regrettably, in the absence of corroborating evidence, there is no basis for granting the applicant's requested relief.

3.  The applicant seeks correction of his military records to show he served on active and inactive duty for 22 qualifying years for retired pay.

4.  The applicant’s records clearly show that between 27 February 1968 and 15 July 1995, he had 7 years, 10 months, and 22 days of qualifying service (his Regular Army service).  Although the applicant states that he served on active and inactive duty, his AHRC Form 249-2-E shows he did not receive the required 50 retirement points per year to constitute a qualifying year for retirement during his inactive years of service from 16 July 1983 and 15 July 1995.  There is no evidence that the applicant attended any monthly training assemblies to be awarded additional retirement points for those years.  There are no provisions for awarding retirement points for service not performed and he has provided no information to permit the Board to increase his total to 22 qualifying years.

5.  Unfortunately, the evidence of record fails to show that the applicant is qualified to receive retired pay.  However, if he has evidence to show he actively participated in the U. S. Army Reserve from 1983 to July 1995, he should provide that evidence to the U. S. Army Human Resources  - St. Louis, MO to update his AHRC Form 249-2-E.


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.



      		_________XXX________________
           	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)                                         AR20090002274



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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