IN THE CASE OF:	  

		BOARD DATE:	  25 January 2011

		DOCKET NUMBER:  AR20100014888 


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, that the nonjudicial punishment (NJP) imposed under Article 15, Uniform Code of Military Justice (UCMJ) on 18 October 1968 be expunged from his record and, as a result, he requests award of the Army Good Conduct Medal.  In addition, he requests award of a third Purple Heart and inclusion of two Soldiers' letters into his personnel service record.

2.  The applicant states, in effect, that the reason he received the NJP was that he fell asleep on duty due to the effects of his prescribed pain medication.  He states he received shrapnel fragment wounds to his head and neck while serving in the Republic of Vietnam.  He states two Veterans provided letters stating shrapnel fragments wounded him.  In addition, he states these two letters should be filed in his personnel service record.  He concludes by stating a Veterans medical center and a naval hospital never received his military medical records from the Vietnam conflict.

3.  The applicant provides two letters in support of his application from former Soldiers, dated 17 July 2009 and 26 September 2009. 

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 was inducted into the Army of the United States on 24 October 1966.  He completed his initial entry training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained was specialist four (SP4) (temporary)/E-4.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from 27 April 1967 to 26 April 1968 with Company B, 5th Battalion, 60th Infantry, 9th Infantry Division as a rifleman.

4.  The applicant's personnel service record contains the following orders:

	a.  General Orders Number 1724, issued by Headquarters, 9th Infantry Division, dated 27 March 1969, that awarded him the Purple Heart for wounds received in action on 23 February 1968; and

	b.  General Orders Number 45, issued by Headquarters, 3rd Field Hospital, dated 4 April 1968, that awarded him the Purple Heart with oak leaf cluster for wounds received in action on 1 April 1968.

5.  On 18 October 1968, the applicant accepted NJP for sleeping on duty on
7 October 1968.  The applicant did not appeal his punishment.

6.  Item 38 (Record of Assignments) of his DA Form 20 shows he received "excellent" conduct and efficiency ratings throughout his service with no records of court-martial or time lost.  In addition, there is no evidence he was disqualified by his chain of command from receiving the Army Good Conduct Medal.  

7.  Item 41 (Awards and Decorations) of his DA Form 20 shows he received the:

* Marksman Marksmanship Qualification Badge with Rifle Bar  
* National Defense Service Medal
* Vietnam Service Medal


* Combat Infantryman Badge
* Republic of Vietnam Campaign Medal with Device (1960)
* Purple Heart with oak leaf cluster 

8.  The applicant was honorably released from active duty on 23 October 1968 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  His DD Form 214 shows he completed 2 years of total active service with 1 year of foreign service in the Republic of Vietnam. 

9.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the: 

* National Defense Service Medal
* Combat Infantryman Badge
* Vietnam Service Medal
* Purple Heart with oak leaf cluster
* Republic of Vietnam Campaign Medal with Device (1960)
* Marksman Marksmanship Qualification Badge with Rifle Bar 

10.  The applicant’s personnel service record contains two DD Forms 1380 (U.S. Field Medical Card).  One shows that on 13 February 1968 he sustained a back injury because of enemy action.  He was treated and returned to duty.  The second medical card shows that he received fragment wounds to his right leg and right abdomen on 1 April 1968 and he was medically evacuated for further treatment.

11.  The Vietnam casualty roster is void of any entries that show he was injured and received medical treatment for his wounds during his tour of duty.

12.  There are no orders in his personnel service record awarding him the Army Good Conduct Medal or a third award of the Purple Heart.

13.  The applicant provided two letters from Veterans of the Vietnam War who served with him.  The first Veteran states he was in the helicopter that medically evacuated the applicant after he sustained injuries to his back and neck in February 1968 during the TET Offensive campaign.  The second Veteran attests to seeing the applicant sustain wounds to his back and neck after he fell into an enemy booby trap.  


14.  References:

	a.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice.  Chapter 3 states that a commander will personally exercise discretion in the nonjudicial process by evaluating the case to determine whether proceedings under Article 15 should be initiated; to determine whether the Soldier committed the offense(s) where 
Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial; and to determine the amount and nature of any punishment if punishment is appropriate.

	b.  Army Regulation 27-10, in effect at the time, stated that when punishment is imposed under Article 15, UCMJ, all action taken, including notification, acknowledgements, imposition, appeal, action on appeal, or any other action would be recorded on a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ).  In the case of those Soldiers in an enlisted status and who had  completed 3 years or less of active Federal Military service at the time of the offense the original DA Form 2627 was permanently filed in the efficiency portion of the Official Military Personnel File (OMPF).

	c.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provided that the Army Good Conduct Medal was awarded on a selective basis to each Soldier who distinguished himself from among his fellow Soldiers by his exemplary conduct, efficiency, and fidelity while in an enlisted status.  There was no right or entitlement to the Army Good Conduct Medal until the immediate commander had made a positive recommendation for the award, and until the awarding authority had announced the award in general orders.

	d.  Army Regulation 672-5-1, in effect at the time, provided that the Army Good Conduct Medal was awarded to individuals who had completed a qualified period of active duty enlisted service.  This period was each 3 years except in those cases when the period for the first award ended with the termination of a period of Federal military service.  The enlisted person must have had all "excellent" conduct and efficiency ratings and no convictions by a court-martial.

	e.  Army Regulation 600-8-22 (Military Awards) states 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.


	f.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

	g.  Army Regulation 600-37, paragraph 7-2, contains guidance on appeals for removal of OMPF entries.  It states the burden of proof to support removal of a document filed in the OMPF rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  The regulation provides provisions that allow the transfer of an NJP from the performance portion to the restricted section of the OMPF.  

   h.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket (MPRJ), the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.  Table 2-1 of this regulation pertains to the composition of the OMPF, which states that data, forms or official documents that pertain to the permanent or temporary promotion status will be filed in the general administration section of the Soldiers performance fiche.

	i.  Army Regulation 600-8-22, paragraph 2-13, contains the regulatory guidance on the Vietnam Service Medal.  It states, in pertinent part, that a bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.  Appendix B shows that during his service in Vietnam, the applicant participated in the following four campaigns:

* Vietnam Counteroffensive Phase II (1 July 1966 - 31 May 1967)
* Vietnam Counteroffensive Phase III (1 June 1967 - 29 January 1968)
* TET Counteroffensive (30 January - 1 April 1968)
* Vietnam Counteroffensive Phase IV (2 April - 30 June 1968)

	j.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam.  This pamphlet shows the 5th Battalion, 60th Infantry, was cited for award of the:

* Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period December 1966 - June 1968 by Department of the Army General Order (DAGO) Number 43, dated 1970
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 19 December 1966 - 28 June 1969 by DAGO 59, dated 1969

DISCUSSION AND CONCLUSIONS:

1.  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, the Article 15 was appropriately filed in the applicant's OMPF.

2.  Once a document is placed in the OMPF it becomes a permanent part of that file and it will not be removed from that file or moved to another part of the file unless directed by the proper authorities.  The applicant has not shown that his Article 15 was improper or unjust; therefore, the applicant is not entitled to removal of the Article 15 from his OMPF.

3.  There are no orders in the applicant's record awarding him the Army Good Conduct Medal.  Although there is no indication the applicant’s chain of command disqualified him from award of the Army Good Conduct Medal, his record shows imposition of NJP on one occasion for sleeping while on duty.  

4.  While the applicant did accept an NJP for one minor disciplinary infraction, his overall record contains “excellent” conduct and efficiency ratings with no evidence of disqualification.  Based on his completion of a qualifying period of service from 24 October 1966 through 23 October 1968 ending with the termination of his first period of enlisted service and in the absence of a disqualification from the Army Good Conduct Medal, he is eligible for the first award of the Army Good Conduct Medal.  Therefore, he should be awarded the Army Good Conduct Medal (first award) and his DD Form 214 should be corrected accordingly.

5.  The applicant received two Purple Hearts for injuries he incurred on 23 February 1968 and 1 April 1968.  Medical cards filed within his service record confirm he was treated for a back injury on 13 February 1968 and for fragment wounds on 1 April 1968.  The evidence provided by the applicant details the circumstances of the back injury and that it occurred in February 1968.  There is no documentary evidence to show the applicant was wounded, was medically treated, and received a third Purple Heart.


6.  Based on the evidence of record, it is presumed that the applicant received the Purple Heart for back injuries sustained in the month of February 1968.  Although medical evidence reported the date of injury as 13 February 1968 while the Purple Heart general order shows he sustained an injury on 23 February 1968, lacking evidence to the contrary there is insufficient evidence and lack of justification to award the applicant a third Purple Heart for back and head injuries incurred in February 1968.  

7.  The applicant is advised that a copy of these Proceedings will be filed in his OMPF.  Therefore, the two letters he provided the Board as evidence will be filed along with all other documents associated with this case.

8.  The applicant participated in four campaigns during his service in Vietnam.  Therefore, he is entitled to four bronze service stars for wear on his already-awarded Vietnam Service Medal.

9.  The applicant's unit was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation during his period of assignment.  Therefore, he is entitled to correction of his DD Form 214 to show these unit awards.

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. deleting from item 24 of his DD Form 214 the Vietnam Service Medal;

	b.  awarding him the Army Good Conduct Medal (first award) for the period 24 October 1966 through 23 October 1968; and


	c.  adding to item 24 of his DD Form 214 Army Good Conduct Medal (first award), Vietnam Service Medal with four bronze service stars, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.

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 awarding him a third award of the Purple Heart and removing his NJP from his OMPF.



      ___________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)                                         AR20100014888



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ABCMR Record of Proceedings (cont)                                         AR20100014888



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