IN THE CASE OF:	  

		BOARD DATE:	  26 July 2011

		DOCKET NUMBER:  AR20110001352 


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 records to show award of the Purple Heart and to show his rank as sergeant (SGT)/E-5.  

2.  He states he:

* should have received the Purple Heart for shrapnel in his back
* was treated twice for shrapnel wounds
* should have the rank of SGT
* received the paperwork for promotion to specialist five (SP5) in the field from his company commander

3.  He provides no additional documents.  

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 15 August 1968.  

3.  His DA Form 20 (Enlisted Qualification Record) shows in:

* Item 2 (Grade) – he held the grade of specialist four (SP4)/E-4
* Item 3 (Date of Rank) – 14 May 1969 
* Item 31 (Foreign Service) - he served in Vietnam from 8 September 1969 to 7 August 1970
* Item 33 (Appointments and Reductions) – he was promoted to the temporary rank of SP4/E-4 on 14 May 1969
* Item 38 (Record of Assignments) – does not show he was hospitalized in a “patient” status at any time
* Item 40 (Wounds) no entries [blank]
* Item 41 (Awards and Decorations) does not list the Purple Heart

4.  His service record does not contain any orders which show he was awarded the Purple Heart or medical documentation which shows he was wounded as a result of hostile action in Vietnam.  The Vietnam Casualty Roster does not list his name.  

5.  Unit Orders Number 29, dated 14 May 1969, show he was promoted to the temporary rank of SP4/E-4 on the date of the orders.  

6.  His service record doesn’t include orders which show he was promoted to SGT or SP5.  

7.  Special Orders Number 219, dated 7 August 1970, show he was released from active duty on 7 August 1970 in the rank of SP4.  

8.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows in:

* Items 5a (Grade, Rate or Rank) and 5b (Pay Grade) his rank and pay grade as SP4/E4
* Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) no award of the Purple Heart


9.  A review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal orders for the Purple Heart pertaining to the applicant.  

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

11.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  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.  The version in effect at the time directed that the grade in which enlisted personnel served at the time of separation would be entered in item 5a and pay grade in item 5b.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he should have received the Purple Heart for shrapnel in his back and that he was treated twice for shrapnel wounds are acknowledged.  However, his service record doesn’t contain any medical documentation or other evidence that support his claims.  

2.  His service record does not contain orders which authorized him award of the Purple Heart and his name is not listed on the Vietnam Casualty Roster.  In the absence of evidence of record which shows he was wounded or injured as a result of hostile action, there is insufficient evidence upon which to base award of the Purple Heart in this case. 

3.  He contends that he should have the rank of SGT and that he received the paperwork for promotion to SP5 from his company commander.  However, orders show he was promoted to SP4/E-4 on 14 May 1969 and he held this rank until he was separated on 7 August 1970.  

4.  His service record does not indicate he was promoted above the rank of SP4 prior to his separation.  Therefore, his DD Form 214 shows the appropriate rank/grade of SP4/E-4 and there is no basis to correct his records to show his rank as SGT/E-5.  

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)                                         AR20110001352





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110001352



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1