IN THE CASE OF:	  

		BOARD DATE:	  2 September 2010

		DOCKET NUMBER:  AR20100009596 


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, through a member of Congress, promotion to sergeant (SGT)/E-5 and the Purple Heart (PH).

2.  The applicant states the following:

a. he was told he would receive his SGT stripes and the PH when he left 
Vietnam but neither one was sent to him;

b. he was hit by shrapnel from a bomb and injured his back while stationed
Quon Lui, Vietnam; and

c. he was subsequently taken to the hospital where he stayed for 19 days.

3.  The applicant provides the following documents in support of his application:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Air Medal (AM) order

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 was inducted into the Army of the United States and entered active duty on 23 October 1968.  He was trained in and awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was promoted to the rank of specialist four (SP4)/E-4 on 6 November 1969, and this was the highest rank he held while serving on active duty.  Item 31 (Foreign Service) shows he served in the Republic of Vietnam (RVN) from 3 March 1969 through 29 May 1970.

4.  Item 40 (Wounds) of the DA Form 20 is blank and the PH is not included in the list of awards contained in item 41 (Awards and Decorations).

5.  The applicant's record is void of any orders or other documents that indicate he was ever awarded or recommended for award of the PH by proper authority while serving on active duty.  The record does not include any medical treatment records that indicate he was ever treated for a combat-related wound or injury while serving in the RVN.

6.  The applicant’s record contains Headquarters, 1st Cavalry Division, General Orders Number 1719 dated 3 January 1970.  It awarded the applicant the AM and shows his rank as SGT.

7.  On 29 May 1970, Headquarters, United States Army Personnel Center, issued Special Orders Number 149, which directed the applicant’s release from active duty (REFRAD) in the rank of SP4, on that date.  The applicant’s record is void of any orders that show he was ever promoted above the rank of SP4.

8.  On 29 May 1970, the applicant was honorably REFRAD after completing 1 year, 7 months, and 7 days of active service.  The DD Form 214 issued to him at that time shows he held the rank and grade of SP4/E-4 in Items 5a (Grade, Rate, or Rank) and 5b (Pay Grade), respectively.

9.  During the processing of this case, a member of the Board staff reviewed the Vietnam Casualty Roster.  There is no entry pertaining to the applicant on this list of RVN casualties.

10.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that were prepared for individuals upon retirement, discharge, or release from active military service or control of the 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 discharge contained item-by-item instructions for completing the DD Form 214 in Section II.  These instructions indicated that the active duty grade of rank and pay grade at the time of separation will be entered in Items 5a and 5b on that document.

11.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH.  It states 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, that the wound required treatment by medical personnel, and a record of this medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends should be promoted to SGT/E-5 and awarded the PH.

2.  The evidence of record confirms the applicant was last promoted to SP4/E-4 on 6 November 1969 and that he was performing the duties in this rank on the date of his REFRAD, as evidenced by his DA Form 2-1 and his REFRAD order.  Thus, it appears that the AM order on file either was incorrectly prepared to show his rank as SGT instead of SP4 or indicates he was an acting SGT.  In accordance with the applicable regulation, the applicant’s DD Form 214 and record correctly shows the appropriate rank and grade he held at the time of his REFRAD.

3.  By regulation, in order to support award of the PH, it is necessary to establish that the wound, for which the award is being made, was received as a direct result of or was caused by enemy action, that it required medical treatment by medical personnel, and a record of this medical treatment must have been made a matter of official record.

4.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action, and his record is void of any orders or other documents that show he was ever recommended for or awarded the PH by proper authority while serving on active duty.  There are no medical treatment records on file that indicate he was ever treated for a combat-related wound or injury while serving in the RVN.  Further, his name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.

5.  Absent any evidence of record or independent evidence submitted by the applicant that confirms he was wounded as a result of enemy action or that he was ever treated for a combat-related wound or injury by military medical personnel while serving in the RVN, 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 support award of the PH in this case.

6.  The applicant and all others concerned should know that this action related to award of the PH in no way diminishes the sacrifices made by him 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)                                         AR20100009596





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)