IN THE CASE OF:	  

		BOARD DATE: 6 July 2010	  

		DOCKET NUMBER:  AR20100000535 


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 award of the Purple Heart and the rank/grade of specialist five (SP5)/E-5.

2.  The applicant states these items were overlooked upon his transfer from the Republic of Vietnam (RVN).

3.  The applicant provides no additional evidentiary documentation 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 military records show that he was inducted into the Army of the United States on 24 November 1967.  He was trained and awarded military occupational specialty (MOS) 55B (Ammunition Storage Specialist).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows the following:

	a.  Item 33 (Appointment and Reductions), shows he was advanced to specialist four (SP4)/E-4, effective 30 August 1968 and

	b.  Item 38 (Record of Assignments), shows he served in the RVN with the 188th Ordnance Company from 15 May 1968 through 9 May 1969.

4.  There are no orders in the applicant's service personnel records which show he was awarded the Purple Heart.  There is also no evidence in his records that show he was wounded or treated for wounds as a result of hostile action.  His DA Form 20 does not show any entry in Item 40 (Wounds) or list the Purple Heart in Item 41 (Awards and Decorations).  The applicant's name is not listed on the Vietnam Casualty Roster.

5.  There are no orders or other documents contained in the applicant's records that show he was ever recommended for or promoted to the rank/grade of SP5/E-5.

6.  The applicant was released from active duty (REFRAD) on 21 November 1969, having completed 1 year, 11 months, and 28 day of active service.  The DD Form 214 he was issued at the time of his REFRAD shows his rank/grade as SP4/E-4.

7.  Army Regulation 600-8-22 (Military Awards) provides 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.

8.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for preparing and distributing DD Form 214.  The regulation, in effect at the time of the applicant’s separation, stated that the active grade or rank and pay grade held at the time of separation would be entered in Item 5a 


and 5b of the DD Form 214.  It further stated that the source documents for entering information on the DD Form 214 would be the DA Form 20 or documents properly filed in the Soldier's Official Military Personnel File (OMPF).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was awarded the Purple Heart and attained the rank/grade of SP5/E-5 prior to departing the RVN was carefully considered; however, there is insufficient evidence to grant relief.

2.  There are no general orders that show the applicant was awarded the Purple Heart.  Evidence of record does not show the applicant was wounded as a result of hostile action or treated for such wounds.  The applicant's name does not appear on the Vietnam Casualty Roster.

3.  In the absence of such evidence, there is insufficient evidence upon which to base award of the Purple Heart.

4.  The applicant's DA Form 20 shows the highest rank/grade he held while serving on active duty was SP4/E-4, which is appropriately listed on the DD Form 214.  There is no evidence of record and the applicant did not provide any evidence to show he was promoted to SP5/E-5.

5.  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.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100000535



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ABCMR Record of Proceedings (cont)                                         AR20100000535



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