IN THE CASE OF:	  

		BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090012753 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his date of birth (DOB) as 2 June 1949 instead of 6 June 1949 and award of the Purple Heart.

2.  The applicant states that while in the process of applying for the Department of Veteran Affairs benefits, he noticed that his DOB is incorrect.  He also states that he was presented with the Purple Heart for a shrapnel injury in the lower back that occurred in March 1969 during an enemy mortar attack around Kontum near Pleiko in Vietnam but cannot locate the paperwork for it.

3.  The applicant provides a copy of his DD Form 214, dated 4 February 1970, in support of his request.

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 records show he was inducted into the Army of the United States in Oakland, CA, on 3 July 1968.  Item 5 (Date of Birth) of his DD Form 47 (Record of Induction) shows the entry "2 June 1949."

3.  In conjunction with his induction and entrance on active duty, the applicant completed a DD Form 398 (Statement of Personal History) and listed his DOB as "6 June 1949."  He authenticated this form by placing his signature in the appropriate block.

4.  On 7 July 1968, the applicant placed his fingerprints on a DD Form 369 (Police Record Check) as part of verification of his eligibility for military service.  His DOB is shown as "6 June 1949."  Again, he authenticated this form by placing his signature in the "Signature of Person Being Fingerprinted" block.

5.  Item 6 (Date of Birth) of the applicant’s DA Form 20 (Enlisted Qualification Record) created upon his entry on active duty and reviewed by the applicant at a later date shows the entry "6 June 1949."  Again, the applicant authenticated this form by placing his signature in the appropriate block.  However, his records also contain a second DA Form 20 that shows his DOB as 2 June 1949. 

6.  The applicant's records contain a copy of his DD Form 41 (Record of Emergency Date) that shows his DOB as "6 June 1949."  He authenticated this form by placing his signature in the appropriate place.  

7.  The applicant’s records show he completed basic combat and advanced individual training and was awarded military occupational specialty 13B (Field Artillery Crewmember).  He subsequently served in the Republic of Vietnam from on or about 16 December 1968 to on or about 3 February 1970.  He was assigned to Battery C, 3rd Battalion, 6th Artillery.

8.  He was honorably released from active duty in the rank of sergeant/E-5 on 4 February 1970 and transferred to the U.S. Army Reserve Control Group (Annual Training) for completion of his Reserve obligation.  The DD Form 214 he was issued shows he completed 1 year, 7 months and 2 days of creditable active service.  This form further shows the following entries:

	a.   Item 4 (Date of Birth) shows the entry "6 June 1949";


	b.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows he was awarded the National Defense Service Medal, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14 and M-16), the Vietnam Service Medal, the Vietnam Campaign Medal, and two overseas service bars.  Item 24 does not show award of the Purple Heart.

9.  Item 38 (Record of Assignment) of the applicant's DA Form 20 (Enlisted Qualification Record) shows a blank entry.

10.  The applicant's name is not shown on the Vietnam casualty roster and there are no general orders in his records that show he was awarded the Purple Heart 

11.  The applicant's available medical records do not show he sustained a combat injury/wound and/or was treated for such injury or wound.

12.  During the processing of this case, a member of the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System maintained by the Military Awards Branch of the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any Purple Heart orders on file for the applicant.

13.  The applicant's records also show he enlisted in the Regular Army for a period of 4 years on 16 March 1970.  Item 21 (Date of Birth) of his DD Form 4 (Enlistment Contract) shows the entry "6 June 1949."

14.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part, it states that the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.

15.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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 contends that his DD Form 214 should be corrected to show his DOB as 2 June 1949 and award of the Purple Heart.

2.  With respect to the Purple Heart, the applicant's name is not shown on the Vietnam casualty roster; his DA Form 20 does not indicate any combat wounds; his record is void of any orders that show he was awarded the Purple Heart; and his medical records do not show he was treated for a combat injury/wound.  In the absence of documentation that conclusively shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case.

3.  With respect to his DOB, the evidence of record shows that his induction document and one of his DA Forms 20 listed his DOB as 2 June 1949.  However, he completed several other forms throughout his military service, including another DA Form 20, Statement of Personal History, Police Record Check, Record of Emergency Data, and an Enlistment Contract, and indicated that his DOB was 6 June 1949.  It is unclear why the applicant used two different dates of birth during his military service.

4.  The Army has an interest in maintaining the accuracy of its records for historical purposes.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.  In the absence of compelling information to the contrary, there is no basis for changing the applicant’s DOB in this case.  However, a copy of this decisional document, along with the application will be filed in his service records.  This should serve to clarify any questions or confusion regarding the different dates of birth and adequately document his date of birth in his record.

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)                                         AR20090012753



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ABCMR Record of Proceedings (cont)                                         AR20090012753



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