IN THE CASE OF:	  

		BOARD DATE:	      6 OCTOBER 2009

		DOCKET NUMBER:  AR20090008365 


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 Social Security Number (SSN) and award of the Purple Heart (PH).   

2.  The applicant states, in effect, his SSN was changed by the Social Security Administration (SSA) in 1975, and he would like the SSN on his military record corrected to this changed SSN.  He also states he should be awarded the PH for injuries he received in the Republic of Vietnam (RVN) that led to his medical retirement.  

3.  The applicant provides an IRS Form 5260, dated 12 August 1975, issued by the SSA and his DD Form 214 (Report of Separation from Active Duty) in support of his 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 record shows he initially enlisted in the Regular Army and entered active duty on 28 December 1966 and reenlisted for 6 years on 
4 September 1969.  The DD Form 4 (Enlistment Record-Armed Forces of the United States) prepared during his reenlistment processing in 1969 lists an
SSN different than the one issued by the SSA in 1975.  A DA Form 20 (Enlisted Qualification Record), prepared on the applicant on 17 August 1972 also lists the SSN he now wishes to be changed.  

3.  Item 40 (Wounds) of the applicant's DA Form 20 is blank and the PH is not included in the list of awards contained in item 41 (Awards and Decorations).  The applicant last audited the DA Form 20 on 17 August 1972.  A DA Form 2-1 (Personnel Qualification Record), prepared on the applicant on 20 August 1974 and last reviewed by the applicant on 27 June 1975, mirrors the information from the DA Form 20.  

4.  All documents and orders in his Official Military Personnel File (OMPF), which include a DA Form 1999 (Physical Evaluation Board (PEB) Proceedings), dated 30 September 1975; Department of the Army, United States Army Military Personnel Center, Letter Orders Number D 11-351(disability retirement orders), dated 25 November 1975; and the DD Form 214 issued to the applicant on 
10 December 1975, all list his SSN as the one he now claims is incorrect.  The one exception is a DA Form 4240 (Data for Payment of Retired Army Personnel), dated 5 December 1975, which lists the SSN the applicant now claims is correct. 

5.  The applicant's record shows he was determined to be unfit for further service and granted a disability rating of 50 percent (%) as a result of the absence of his eye (40%); and scar, left upper eyelid, moderately disfiguring (10%) by a PEB conducted on 30 September 1975, at Fort Gordon, Georgia.  The PEB recommended the applicant be permanently retired with a 50% disability rating.  

6.  The applicant's OMPF contains a Standard Form (SF) 502 (Clinical Record-Narrative Summary) prepared during the applicant's processing through the Physical Disability Evaluation System (PDES) and casualty files, which include notification telegrams, that confirm he was injured in the RVN on 9 March 1971, while burning trash at base camp, when one of the trash barrels exploded and he was struck with fragments.  

7.  On 10 December 1975, the applicant was honorably retired, in the rank of specialist five (SP5), by reason of permanent disability, after completing a total of 
8 years, 11 months, and 13 days of active military service.  Item 3 (Social Security Number) of his DD Form 214 lists the SSN he now claims is incorrect.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) does not include the PH in the list of awards entered.  

8.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  The regulation in effect at the time of the applicant's REFRAD stipulated that the personnel qualification records and documents on file in the OMPF would be used as the source records for entries on the DD Form 214.   

9.  Army Regulation 600-8-22 (Military Awards) contains the Army's award policy. Paragraph 2-8 contains guidance on award of the PH and states, in pertinent part, that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the SSN listed on his final DD Form 214 and throughout his military record should be corrected to coincide with the SSN recognized by the SSA administration was carefully considered.  However, the evidence of record confirms the SSN shown on the applicant's DD Forms 214 and on all documents and records on file in his OMPF, with the exception of one DA Form 4240 issued in December 1975, is identical to the SSN recorded on his DA Form 20, DA Form 2-1 and in the available documents and orders on file in his OMPF. 

2.  The Army has an interest in maintaining the accuracy of its records for historical purposes, and normally would not change an SSN under which a member performed military service because the military records should reflect the conditions and circumstances that existed at the time the records were created and under which the military service was performed.  Although the applicant provides an IRS Form 5260 issued by the SSA on 12 August 1975, which confirms an SSN for the applicant different than the one recorded in his records, this SSN is not the same one used in his military records.  

3.  Absent any evidence that the applicant has or will suffer some injustice as a result of the different SSNs, it would not be appropriate to change the SSN listed 
in his military records given it was the one under which he entered military service and performed his military service at this late date.  This Report of Proceedings, along with the application and supporting documents submitted by the applicant, will be filed in his OMPF to provide clarity to any confusion that might arise regarding his different SSNs.  Filing the Board’s decisional document, along with the DA Form 4240 already on file, will also guarantee the historical accuracy of the applicant’s military record regarding the SSN under which he entered military service and served.  It will also clarify at what point the SSN was changed/corrected and will serve to document the SSN that is now considered correct by the applicant and SSA while maintain the historical accuracy and integrity of his military records.   

4.  The applicant's contention that he should be awarded the PH for the injury he sustained in the RVN that led to his disability retirement was also carefully considered.  However, by regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action.

5.  Although the record clearly shows the applicant sustained his disabling eye injury while serving in the RVN, medical treatment records on file confirm the injury was the result of an accidental explosion of a trash barrel and was not related to or caused by enemy action.  Therefore, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  As a result, it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to award the applicant the PH at this late date.  

6.  The applicant and all others concerned to know that this action related to award of the PH in no way diminishes the sacrifices made by the applicant 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.



      ___________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)                                         AR20090008365



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ABCMR Record of Proceedings (cont)                                         AR20090008365



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