IN THE CASE OF:
BOARD DATE: 7 July 2009
DOCKET NUMBER: AR20090003155
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 a 4th award of the Purple Heart and promotion to pay grade E-8.
2. The applicant states, in effect, he was not awarded the Purple Heart with 3rd Oak Leaf Cluster (4th award). He further states, in effect, that an entry in his records showing his status as dropped from the rolls of the Army during the time he was being medically treated for his wound(s) related to the incident for which he is requesting the 4th award of the Purple Heart negatively impacted his military career to include his not initially remaining on active duty and then his not being promoted to pay grade E-8.
3. The applicant provides a Standard Form 600 (Chronological Record of Medical Care), dated May 1969, Standard Form 514 (Consultation Sheet), dated 29 September 1969, DA Form 2823 (Sworn Statement), and a photocopy of his DA Form 20 (Enlisted Qualification Record) 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 military records show he enlisted in the Regular Army on 7 June 1962. He was awarded the military occupational specialty of light weapons infantryman. The applicant continued to serve on active duty through subsequent reenlistments until he was discharged due to expiration term of service on 31 July 1970. The highest rank he attained during this period of active duty was staff sergeant.
3. The applicant enlisted in the Regular Army on 10 January 1978, was promoted to sergeant first class, and continued to serve on active duty through subsequent reenlistments until he was transferred to the U.S. Army Reserve Control Group (Retired) on 31 August 1991 for length of service and placed on the Retired List on 1 September 1991. He completed 21 years, 9 months, and 15 days of creditable active service.
4. The applicant's records contain Headquarters, 24th Evacuation Hospital, General Orders Number 61, dated 15 March 1969, showing award of the Purple Heart with the 3rd Oak Leaf Cluster, i.e. 4th award. His DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of
31 August 1991 shows four awards of the Purple Heart. Therefore, this portion of his request will not be further discussed.
5. The applicant's DA Form 20 (Enlisted Qualification Record) contains an entry showing he was dropped from the rolls, which was then lined through.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that he did not initially remain on active duty because of the negative impact from being carried in a dropped from the rolls of the Army status while he was being treated at Walter Reed Army Medical Center for wounds incurred from hostile action in Vietnam in March 1969. However, the applicant has not submitted any evidence to support this contention.
2. The applicant's contention that his being carried in a dropped from the rolls of the Army status had a negative effect on his getting promoted to master sergeant is speculative. The applicant has not submitted any evidence to support this contention. In the absence of evidence to the contrary, the Board must make a presumption of regularity.
3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
4. In view of the foregoing, there is no basis for granting the applicant's request. To grant the applicant's request would be giving him a benefit not afforded to other Soldiers.
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) AR20090003155
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ABCMR Record of Proceedings (cont) AR20090003155
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