BOARD DATE:	  24 September 2009

		DOCKET NUMBER:  AR20090007114 


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.  In two separate applications, the applicant requests, in effect, that the record and DD Form 214 (Certificate of Release or Discharge from Active Duty) of her deceased husband, a former service member (FSM), be corrected to show he was disabled and awarded the Purple Heart (PH).

2.  The applicant states, in effect, that the FSM suffered from multiple physical problems and was denied a medical board prior to his retirement.  She also claims the FSM sustained shrapnel wounds while serving in the Republic of Vietnam (RVN) and that the military and Department of Veterans Affairs (DVA) were insensitive to the FSM's medical conditions.  The applicant also claims that the FSM was not given the proper diagnosis or medical attention because he was seen by lower enlisted personnel and a physician's assistant.

3.  The applicant provides the following documents in support of her application:  Certificate of Death; DD Form 214; Army Review Boards Agency letter, dated 3 March 2009; and Congressional letter with facsimile coversheet and Privacy Act Statement.

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 FSM's military record shows he initially enlisted in the Regular Army and entered active duty on 28 June 1967 and that he was trained and served in military occupational specialties 68J (Aircraft Armament Missile System Repairer) and 67G (Utility Airplane Repairer).

3.  The FSM's DA Form 2-1 (Personnel Qualification Record) includes an entry in item 5 (Oversea Service) that shows he served in the RVN from 5 December 1967 to 30 November 1968.  Item 9 (Awards, Decorations, and Campaigns) does not include the PH in the list of awards entered.  Item 33 (Date Prepared and Reviewed) shows the FSM last reviewed his DA Form 2-1 on 11 June 1990.

4.  The FSM's military personnel records jacket (MPRJ) contains no orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty.  The MPRJ is also void of any medical treatment records indicating he was ever treated for a combat-related wound.

5.  The applicant's record is void of any medical treatment records or other documents that indicate he was ever treated for a disabling medical or mental condition that would have warranted his separation processing through medical channels during his active duty tenure.

6.  The FSM's MPRJ contains three DD Forms 214 issued upon completion of his previous enlistment periods on 22 April 1969, 12 December 1974, and 12 December 1977.  The PH is not included in the lists of awards entered on these documents and the FSM authenticated these documents with his signature on the dates they were issued.

7.  On 30 September 1990, the FSM was honorably retired for length of service in the rank of staff sergeant/E-6.  The DD Form 214 he was issued at the time shows he completed a total of 23 years, 3 months, and 3 days of creditable active military service and that he was separated under the provisions of chapter 12, Army Regulation 635-200 (Personnel Separations), by reason of "for length of service" for the purpose of retirement.

8.  Item 13 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's 30 September 1990 DD Form 214 shows he earned the following awards during his active duty tenure:  Army Commendation Medal, Army Good Conduct Medal (7th Award), National Defense Service Medal, Armed Forces Expeditionary Medal (Korea), Vietnam Service Medal with one silver service star, Army Service Ribbon, Overseas Service Ribbon with Numeral 2, RVN Campaign Medal, Master Aircraft Crew Member Badge, Driver and Mechanic Badge with Driver "W" Bar, RVN Gallantry Cross with Palm Unit Citation, and Expert Marksmanship Qualification Badge with Rifle Bar.  The PH is not included in the list of earned awards in item 13 and the applicant authenticated this document with his signature.

9.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam casualty roster.  There is no entry pertaining to the FSM on this list of RVN casualties.

10.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that the PH is awarded to any member who has been wounded or killed in action. 
A wound is defined as an injury to any part of the body from an outside force or agent sustained under conditions defined by this regulation.  In order to support awarding a member the PH, it is necessary to establish that the wound for which the award is being made required treatment by a medical officer.  This treatment must be supported by records of medical treatment for the wound or injury received in action and must have been made a matter of official record.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

12.  Chapter 3 of Army Regulation 635-40 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability.  In each case it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

13.  Paragraph 3-2 of Army Regulation 635-40 contains guidance on fitness presumptions.  It states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.  Application of the rule does not mandate a finding of fitness.  The presumption is rebuttable and is overcome when the preponderance of evidence establishes the Soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of the FSM's entitlement to the PH was carefully considered.  However, by regulation, in order to support award of the PH, it is necessary to establish that the wound for which the award is being made was received as a direct result of or was caused by enemy action and required medical attention that was made a matter of official record.

2.  The FSM's record is void of any orders or documents that show he was ever recommended for or awarded the PH by proper authority and of any medical treatment records showing he was ever treated for a combat-related wound or injury while service on active duty.  Further, the PH is not included in the list of awards contained on his DA Form 2-1 which the FSM last reviewed on 11 June 1990 or in the list of awards contained on the DD Forms 214 he was issued on 22 April 1969, 12 December 1974, 12 December 1977, and 30 September 1990, all of which he authenticated with his signature.  Finally, his name is not included on the Vietnam casualty roster, the official DA list of RVN casualties.  There is no evidence that suggests the FSM ever attempted to address this issue at anytime while he remained serving on active duty.  As a result, absent any evidence of record confirming the FSM was wounded in action or treated for a combat-related wound or injury while serving on active duty, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.

3.  The applicant's is advised that the DD Form 214 does list the reason and authority for a member's separation or discharge from active duty; however, there are no specific provisions for listing a member's mental or physical status on the DD Form 214.

4.  The applicant's contention that the FSM was denied a medical board prior to retirement and should have been medically retired was also carefully considered. 
However, there is also insufficient evidence to support this claim.  The FSM's record is void of any medical treatment records or other documents that indicate he suffered from a disabling physical or mental condition that rendered him unfit for further service and/or that would have warranted his processing through medical channels (PDES) at the time of his retirement for length of service.

5.  By regulation, the mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  The evidence of record shows the applicant's retirement processing for length of service was properly accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

6.  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 this requirement.

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)                                         AR20090007114



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ABCMR Record of Proceedings (cont)                                         AR20090007114



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