BOARD DATE:	  20 May 2010

		DOCKET NUMBER:  AR20090019078 


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 award of the Purple Heart (PH) and Bronze Star Medal (BSM) and an upgrade of his discharge. 

2.  The applicant states he was told he would be given these awards while in the Saigon hospital but they were never presented.  He is also requesting that his general discharge (GD) under honorable conditions be upgraded to an honorable discharge (HD).  

3.  The applicant provides no documentary evidence 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 enlisted in the Regular Army and entered active duty on 21 June 1968, and he was trained in and awarded military occupational specialty (MOS) 12A (Pioneer).  

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was promoted to specialist four/(SP4)/E-4 on 16 September 1969, and this was the highest rank he attained while serving on active duty.  It also shows he served in the RVN from 28 March 1969 through 12 February 1970, and he was assigned to Company C, Company B, and Company A of the 31st Engineer Battalion. 

4.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows he earned the following awards during his active duty tenure:

* National Defense Service Medal (NDSM)
* Vietnam Service Medal
* RVN Campaign Medal (RVNCM) with 1960 Device
* Marksman Marksmanship Qualification Badge with Rifle Bar.

5.  The applicant's disciplinary history includes his acceptance of non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate dates for the offenses indicated:

	a.  on 20 November 1968, for failing to go to his appointed place of duty at the time prescribed on 18 November 1968; and 

	b.  on 27 April 1969, for absenting himself from his unit without authority on 22 April 1969, and failing to go to his appointed place of duty at the time prescribed on 23 April 1969.  

6.  The applicant's record contains a casualty report showing he was wounded in action in the RVN on 6 September 1969, from a blast injury to both ears and neck sprain when the vehicle in which he was a passenger detonated a hostile mine.  It also contains a Western Union Telegram, dated 9 September 1969 that notified his mother of his wounding.  

7.  The applicant's record is void of orders or other documents indicating he was recommended for or awarded the BSM by proper authority while serving on active duty.  

8.  On 30 October 1969, the unit commander recommended the applicant be separated for unfitness under the provisions of Army Regulation 635-212 with an undesirable discharge (UD). 

9.  On 11 January 1970, a board of officers convened to consider the applicant's elimination from service.  The board, after reviewing the evidence and hearing testimony, determined the applicant was unsuitable for further service and recommended the applicant be discharged for unsuitability and receive a GD.  

10.  On 11 February 1970, the separation authority approved the applicant's separation for unsuitability under the provisions of Army Regulation 635-212, Separation Program Number (SPN) 46A (apathy, defective attitude, and inability to expend efforts constructively) and that he be issued a GD.  On 13 February 1970, the applicant was discharged accordingly.  

11.  The DD Form 214 issued to the applicant shows he held the rank of SP4/E-4 and had completed 1 year, 7 months, and 23 days of active military service.  The PH and BSM are not included in the list of awards contained in item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized).

12.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

13.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  It contained an entry pertaining to the applicant showing he was wounded in action in the RVN on 
6 September 1969.  

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unsuitability and unfitness.  The regulation stipulated that members were subject to separation for unsuitability for inaptitude, character and behavior disorders, apathy (lack of appropriate interest), defective attitudes, inability to expend effort constructively, alcoholism, and enuresis.  A GD characterization of service was normally appropriate; however, the separation authority could issue an HD if warranted by the member's record of service.  

15.  The same regulation stated a board of officers convened to determine if a member should be separated for unfitness could recommended the member be separated for unsuitability (indicating the type of discharge certificate to be issued) or could recommend retention in service.  The separation authority in cases of a board recommendation for separation for unsuitability could direct separation for unsuitability, disapprove the recommendation and direct retention, or approve separation for unsuitability and suspend execution of the separation. 

16.  The same regulation defined apathy (lack of appropriate interest), defective attitude, and inability to expend effort constructively by indicating while lack of appropriate interest or other defective attitudes may be manifested in conjunction with physical defects, or mental, or organic diseases, including psychoneurosis, these traits are not necessarily produced by the physical or disease process.  On the other hand, individuals considered for elimination may attempt to excuse immature, inadequate, and undisciplined behavior on the basis of minor or non-disabling illnesses.  The presence of a physical or mental disease or defect-producing impairment of function insufficient to warrant separation under disability regulatory provisions is no bar to discharge for unsuitability.  

17.  Army Regulation 635-200 contains the current Army enlisted separation policy.  Paragraph 3-7a provides guidance on an HD.  It states an HD is a separation with honor and entitles the recipient to benefits provided by law.  It is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

18.  Army Regulation 600-8-22 (Military Awards) prescribes Army's awards policy. Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH.  It states, in pertinent part, that in order to award a PH there must be evidence that the wound for which the award is being made was received as a result of enemy action; that the wound required treatment by medical personnel; and a record of this medical treatment must be supported by medical treatment records that were made a matter of official record.

19.  Paragraph 2-13 of the awards regulation contains guidance on the VSM and states, in pertinent part, that a bronze service star is authorized with this award for each campaign a member is credited with participating in while serving in the RVN.  

20.  Table B-1 of the awards regulation contains a list of RVN campaigns and shows that during the applicant's tenure of assignment participation credit was granted for the TET 69 Counteroffensive (23 February 1969- 8 June 1969), Vietnam Summer-Fall 1969 (9 June 1969-31 October 1969) and Vietnam Winter-Spring 1970 (1 November 1969-30 April 1970) campaigns. 

21.  The awards regulation states the decision to award an individual a decoration and as to which award is appropriate are both subjective decisions made by the commander having award approval authority.  Formal recommendations should be submitted for individual awards for service.  The award must be approved by the appropriate award approval authority and announced in official orders. 
22.  Paragraph 3-14 of the awards regulation contains guidance on award of the BSM and states, in pertinent part, that it is awarded for heroic acts, or meritorious achievement or service, of a lesser degree than required for the Silver Star. 

23.  Title 10, U.S. Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

24.  The 10 USC 1130 award request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to the Secretary of the Army at the following agency:  U.S. Army Human Resources Command, Personnel Service Support Division, 200 Stovall Street, Room 3S67, Alexandria, VA  22332-0405.  The applicant's unit must be clearly identified, along with the period of assignment and the award being recommended.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Corroborating evidence is best provided by commanders, leaders and fellow 
Soldiers who had personal knowledge of the circumstances and events relative to the request.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

25.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It confirms that during the applicant's tenure of assignment in the RVN, his unit (31st Engineer Battalion) earned the RVN Gallantry Cross with Palm Unit Citation and RVN Civil Actions Honor Medal First Class Unit Citation.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should by upgraded to an HD was carefully considered.  However, even though the unit commander recommended separation for unfitness with issue of an UD, he was processed for separation for unsuitability and received a GD.  

2.  The regulation then in effect at the time allowed the board of officers and convening authority to recommend/approve a separation for unsuitability even when the case was initiated for unfitness.  This indicates his combat service was appropriately recognized by his chain of command during his separation processing and led to his processing under less severe provisions of the regulation.  

3.  Although the board of officers gave some indication of a character disorder, the separation authority decision to separate him by reason of unsuitability based on apathy (lack of appropriate interest), defective attitude, and inability to expend effort constructively is fully supported by the regulatory definition for this type of separation and is supported by his disciplinary history.  

4.  The applicant's disciplinary history clearly diminished the overall quality of his service below that warranting a fully honorable discharge.  As a result, the GD he received accurately reflects his overall record of service.  Therefore, there is an insufficient evidentiary basis to support an upgrade of his discharge at this late date.  

5.  The applicant's contention he should be awarded the PH was carefully considered and found to have merit.  By regulation, the PH is authorized to members who are wounded as a result of enemy action.  In this case, the record confirms the applicant was wounded in action in the RVN on 6 September 1969, as evidenced by a casualty report and Western Union Telegram in his record and an entry on the Vietnam Casualty Roster, the official DA list of RVN casualties.  Therefore, he should be awarded the PH accordingly, and it should be added to his record and DD Form 214.   

6.  The evidence of record also confirms that based on his service and campaign participation in the RVN, he is eligible for the RVN Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit Citation and 3 bronze service stars with his Vietnam Service Medal.  Therefore, these awards should also be added to his record and DD Form 214.  


7.  The applicant's contention he should be awarded the BSM was also carefully considered.  However, there are no orders or other documents in his record showing he was ever recommended for or awarded the BSM by proper authority while serving on active duty.  As a result, there is an insufficient evidentiary basis to support granting this portion of the requested relief. 

8.  While the available evidence is insufficient for to award the BSM, this in no way affects the applicant’s right to pursue his claim for the Bronze Star Medal by submitting a request through his Member of Congress under the provisions of 10 USC 1130. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ____x____  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  awarding him the Purple Heart for being wounded in action in Vietnam on 6 September 1969; 

	b.  amending item 24 of his DD Form 214 by adding the Purple Heart, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation and 3 bronze service stars with his Vietnam Service Medal; and 

	c.  providing him a correction to his DD Form 214 that includes these changes. 


2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an upgrade of his discharge and award of the Bronze Star Medal.  




      _______ _   __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)                                         AR20090019078



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ABCMR Record of Proceedings (cont)                                         AR20090019078


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