IN THE CASE OF:	  

		BOARD DATE:	        5 November 2009

		DOCKET NUMBER:  AR20090007660 


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 the former service member (FSM) be posthumously promoted to sergeant first class (E-7).  By inference the applicant is also requesting that the FSM be award of the Purple Heart.

2.  The applicant states her husband did all that was required of him to obtain the promotion; however, because of his sudden death he did not receive it.  Not long ago she was told by a retired Soldier that they were surprised that the FSM had not been promoted and advised the applicant of the process to request the posthumous promotion.  She recalls that the day before he died, the FSM had talked about paying off all his bills and tying up loose ends.  He felt good but was concerned about passing the physical fitness test the next day in order to complete all of the necessary requirements for promotion to E-7.  She notes that the FSM was wounded in Vietnam but never received the Purple Heart.  

3.  The applicant provides copies of the FSM's death certificate, last Noncommissioned Officer Evaluation Report (NCOER), four award certificates, five certificates of training, a certificate of reenlistment, three Honorable Discharge Certificates, and a 3-page self-authored 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 was inducted into the Army on 8 November 1967, completed training, and was awarded the military occupational specialty (MOS) 46K (Tank Turret Repairman). 

3.  He served in Vietnam for 1 year and 12 days.  He was honorably released from active duty and transferred to the Army Reserve (USAR) Control Group (Reinforcement) on 15 June 1969.  The FSM was honorably discharged from the USAR on 1 November 1973.

4.  The applicant enlisted under the Delayed Entry Program on 14 April 1976 with enlistment in the Regular Army on 25 May 1976.

5.  The applicant retrained and was initially awarded the MOS 19E (M48/M60A1/A3 Armor Crewman) and then converted to 19K (M1 Abrams Armor Crewman) with a secondary MOS of 45K (Tank Turret Repairman).

6.  The FSM's career progressed normally and included a tour of duty as a drill sergeant and two tours in Germany.  He was promoted to staff sergeant on 28 October 1979.  

7.  The FSM was attending the Advanced Noncommissioned Officer Course when he suffered a heart attack and passed away during a physical fitness test. on 23 March 1988.

8.  During his career, the FSM's authorized awards, decorations, and citations are shown as the Army Commendation Medal with two oak leaf clusters, the Army Achievement Medal, the Army Good Conduct Medal (4th Award), the National Defense Service Medal, the Vietnam Service Medal with one silver service star, the Noncommissioned Officer Professional Development Ribbon with Numeral 2, the Republic of Vietnam Campaign Medal with Device (1960), the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Expert Marksmanship Qualification Badge with Pistol and Tank Weapons Bars, the Marksman Marksmanship Qualification Badge with Rifle Bar, and two Certificates of Achievement.

9.  The FSM's DA Form 2-1 (Personnel Qualification Record) shows his file was forwarded to the Sergeant First Class (E-7) Centralized Promotion Board on 13 July 1987.  

10.  A review of the E-7 selection board found that the applicant was considered but not selected. 

11.  The available service medical records do not include any records from the FSM's first period of active duty.  They do contain copies of four Reports of Medical Examination.  The exam dated 26 March 1976 shows scarring to the left scapula and shoulder from a laceration, the 23 April 1980 physical examination does not note the scarring, the 17 July 1986 physical examination notes scars on his back secondary to shrapnel wounds sustained in Vietnam, and the 10 August 1987 over-40 physical examination notes a 3-inch scar but does not mention the cause.

12.  A review of the Vietnam Casualty List failed to locate a reference to the FSM by name.

13.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The ABCMR will decide cases based on the evidence of record.  It is not an investigative body.

14.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 1–22, provides that for a Soldier to be eligible for a posthumous promotion, the Soldier must have been officially recommended for promotion before the date of death.  For promotion to SFC, the Soldier must have been officially recommended for promotion by the Headquarters, Department of Army, selection board and the promotion authority must have signed the promotion list before the date of death.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states her husband did all that was required of him to obtain the promotion; however, because of his death he did not receive it.  She also states that the FSM was wounded in Vietnam but never received the Purple Heart. 

2.  The available evidence shows that the applicant was considered by the 1987 SFC promotion board but not selected for promotion.  Therefore, it is not appropriate to grant the applicant's request for his posthumous promotion.

3.  The only reference to the possibility that the FSM received a combat related wound in the FSM's records is on a medical examination completed almost 20 years after the alleged wound occurred.  This reference conflicts with another medical examinations and is insufficient by itself to show that the wound was the result of hostile action and that it had required treatment by medical personnel.  Therefore, entitlement to the Purple Heart cannot be established.

4.  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.

5.  This action in no way diminishes the sacrifices made by the FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20090007660





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ABCMR Record of Proceedings (cont)                                         AR20090007660



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