IN THE CASE OF:	  

		BOARD DATE:	    4 August 2011

		DOCKET NUMBER:  AR20110002718 


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 his Member of Congress: 

* Award of the Air Medal with "V" Device and the Purple Heart
* Removal of two DA Forms 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice) from his records
* Restoration of his rank/grade to specialist four (SP4)/E-4 

2.  The applicant states he served in Vietnam from May 1965 through May 1966 and he was put in for several citations that he never received.  He was a crew chief/door gunner on a UH-1B helicopter with the 120th Aviation Company and he was involved in multiple combat missions.  During the Vinh Long mission, his unit fought all night, rearming three times, and prevented an enemy battalion from overrunning their company compound that had a special forces team.  The pilots were put in for the Distinguished Flying Cross while the door gunners and crew chiefs were put in for the Silver Star.  Those who were wounded were put in for the Purple Heart.  In 1966, they started the Rolling Thunder bombing of the Ho Chi Minh Trail northeast of the Iron Triangle.  After the B-52s finished dropping their ordnance, his unit would go in and shoot anything that moved.  They were put in for award of the Air Medal with "V" Device but it turned out that they were in Cambodia at the time and by 1966, that action had not been done.  

3.  When he returned from Vietnam to the United States, he went into serious substance abuse from post-traumatic stress disorder (PTSD).  Consequently, he received two Article 15s and he was busted both times.  He should have received treatment instead of punishment.  He was a volunteer Soldier and would have probably made the Army a career.  His is now in the Department of Veterans Affairs system and his psychologist told him he had a lot of anger.  He is very proud of his service to his country but he is not proud of his country's service to him.  He needs to have the two nonjudicial punishments (NJP) expunged from his records and have his rank of SP4 reinstated.  He also needs to get the Purple Heart and the Air Medal with "V" Device.  He has been dealing with alcoholism and PTSD for 45 years.  He has also been homeless and suicidal as a result of his service.  No one can give him back the past 45 years but he is learning to live with what he has left.

4.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and page 3 of his 4-page DA Form 20 (Enlisted Qualification Record).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code (USC), 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 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.  With respect to the Air Medal with "V" Device, based upon his application, the evidence of record, and accompanying supporting documents he has submitted, it does not appear that the applicant was recommended for or awarded the Air Medal with "V" Device as there are no orders or other evidence on file in his service records confirming this award.  

	a.  The governing law and regulations place time limitations on submission of award recommendations.  Absent any evidence of record or independent evidence provided by the applicant that shows he was recommended for or he was awarded the Air Medal with "V" Device by the proper award authority, his request exceeds these statutory and regulatory time limitations.  

	b.  However, Section 1130 of the U.S. Code (10 USC 1130) allows the Service Secretary concerned to review a proposal for the award of, or upgrading of, a decoration that is otherwise precluded from consideration by limitations established by law or policy.  In order to request an award under 10 USC 1130, the applicant must submit a DA Form 638 (Recommendation for Award).  The DA Form 638 should clearly identify his unit, the period of assignment, and the award being recommended.  A narrative of the actions or period for which he is requesting recognition must accompany the DA Form 638. In addition, his award request 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 (i.e., eyewitness) knowledge of the circumstances and events relative to the request.  

	c.  10 USC 1130 also requires that a request of this nature be referred to the Service Secretary from a Member of Congress.   Therefore, he must submit his request through a Member of Congress to the Secretary of the Army at the following agency: U.S. Army Human Resources Command (USAHRC), ATTN: SGS, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor. 

	d.  If the applicant chooses to pursue the award requested by submitting a request under the provisions of 10 USC 1130, and his request is subsequently denied by USAHRC, he may reapply to the ABCMR.  Therefore, the issue of the Air Medal with "V" Device will not be discussed further in the Record of Proceedings.

3.  The applicant's records show he enlisted in the Regular Army for 3 years on 30 September 1964 and he held military occupational specialty 67N (Single Rotor Helicopter Mechanic).  He served in Vietnam with the 120th Aviation Company from 9 May 1965 to 6 May 1966. 

4.  While in Vietnam, he was promoted to private first class (PFC)/E-3 on 2 June 1965 and to SP4/E-4 on 16 February 1966.  He was reassigned from Vietnam to Fort Rucker, AL, in or around June 1966.

5.  On 8 December 1966, he received an administrative letter of reprimand for writing seven checks without having sufficient funds between 9 and 14 November 1966.

6.  On 30 December 1966, he accepted NJP under the provisions of Article 15 of the UCMJ for absenting himself from his appointed place of duty from 10 to 11 November 1966 and disobeying a lawful order on 29 December 1966.  His punishment consisted of 14 days of restriction and a reduction to PFC/E-3 (suspended for 1 month).  He elected not to appeal his punishment.

7.  On 27 January 1967, the suspension of punishment of a reduction to PFC/E-3 (suspended for 1 month) was vacated and the unexecuted portion of the punishment was ordered executed.  The applicant was reduced to PFC/E-3 effective 27 January 1967.

8.  On 22 May 1967, he again accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction to private (PV2)/E-2, 14 days of restriction and extra duty, and a $4.00 fine for 1 month.  Again, he elected not to appeal his punishment.

9.  He was honorably released from active duty on 29 September 1967 and he was transferred to the U.S. Army Reserve Control Group to complete his remaining service obligation.  There is no indication in his records that shows he was promoted back to PFC/E-3 or SP4/E-4 before he was released from active duty.

10.  Items 5a (Grade, Rate or Rank), 5b (Pay Grade), and 6 (Date of Rank) of his DD Form 214 show the entries "PVT (P) (Private - Permanent)," "E-2," and "22 May 67" respectively.  Additionally, item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the:

* Armed Forces Expeditionary Medal
* Vietnam Cross of Gallantry with Palm Unit Citation
* National Defense Service Medal
* Air Medal (3rd Oak Leaf Cluster)
* Air Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar

11.  Nothing in five typical sources shows he was awarded the Purple Heart.

* item 40 (Wounds), which would have listed a combat injury and the date of such injury, of his DA Form 20 is blank and item 41 (Awards and Decorations) does not list the Purple Heart
* his name is not listed on the Vietnam casualty roster 
* there are no official orders in his records that show he was awarded the Purple Heart
* 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, failed to reveal orders for the Purple Heart
* his service medical records, which would have listed any injuries and confirmed his treatment, are not available for review with this case 
12.  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.

13.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) stated the authority to award the Purple Heart was delegated to hospital commanders.  It directed that all personnel treated and released within 24 hours would be awarded the Purple Heart by the organization to which the individual was assigned.  Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam would be awarded the Purple Heart directly by the hospital commander rendering treatment.

14.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that items 5a and 5b will show the active duty rank and pay grade at the time of the Soldier's separation; the rank is taken from the Soldier’s promotion/reduction orders; and item 6 shows the date of rank.

15.  Army Regulation 27-10 (Military Justice) prescribes and implements the policies and procedures pertaining to the administration of military justice.  It implements the procedures prescribed by the Manual for Courts-Martial.  The version of the regulation in effect at the time stated:

	a.  Paragraph 3-7 authorizes various types of punishment under Article 15, in pertinent part, reduction in grade.  The grade from which demoted must be within the promotion authority of the commanding officer who imposes the punishment or of any officer subordinate to the one who imposes the reduction.  For the purposes of this regulation, a commanding officer has "promotion authority," within the meaning of Article 15, if he has the general authority to appoint to the grade from which reduced or any higher grade.  A reduction under Article 15, if unsuspended, becomes effective on the date the commanding officer imposes the punishment.  Orders announcing reductions in grade and orders announcing forfeitures and detentions of pay or restoration of pay forfeited or detained will be distributed to the custodian of the Military Personnel Records Jacket of the member for filing in the folder, and for use as a substantiating document.

	b.  Paragraph 3-11 states that all Army members (except Army personnel attached to or embarked in a vessel) may demand trial by court-martial in lieu of NJP under Article 15 of the UCMJ.  In deciding whether he wishes to elect trial by court-martial, the member is not entitled to be informed as to the type or amount of punishment he will be given if he does not demand trial.  However, upon his request, he will be informed of the maximum punishment which may be imposed under Article 15 by the officer who is to impose the punishment and of the maximum punishment that can be adjudged by court-martial upon conviction of the offense or offenses involved.

	c.  Paragraph 3-13 states the power to impose NJP charges a commanding officer or an officer to whom that power has been delegated with the grave responsibility of exercising his authority in a completely judicious manner.  Authority under Article 15 must be administered with absolute fairness in a formal and dignified manner at every stage of the proceedings.  Whenever practicable the commanding officer should impose the punishment in the presence of the member.  The commander may then explain to the member such matters as the factors which he considered in determining the punishment and the appellate rights and procedures which are available to the member, as applicable.

	d.  Paragraph 3-15d (Distribution of Article 15) states the DA Forms 2627, 2627-1, and 2627-2 will be prepared in an original and two copies.  Any written statement or other documentary evidence pertaining to the case which has been considered by the officer authorized to impose the NJP will be attached to the original file.  In cases involving enlisted personnel the original form is forwarded to the U.S. Army Personnel Services Support Center, Fort Benjamin Harrison, IN for filing as a permanent document in the Official Military Personnel File (OMPF); the first copy goes to the unit of assignment, for file above the Field Personnel File Divider in the individual's Military Personnel Records Jacket U.S. Army; and the second copy goes to the individual.  

DISCUSSION AND CONCLUSIONS:

1.  With respect to the Purple Heart:

	a.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria.  When contemplating an award of this decoration, the key issue is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not the sole justification for the award.

	b.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

	c.  In this case, nothing in his service records shows he was injured as a result of enemy action.  Additionally, his record is void of any orders that show he was awarded the Purple Heart, his name is not shown on the Vietnam casualty roster, his DA Form 20 does not indicate any injuries or wounds, and his medical records which would have documented the source of an injury and need for treatment are not available for review with this case. 

	d.  Notwithstanding his sincerity, in the absence of official documentary evidence such as operation orders, morning reports, after action reports, official orders to corroborate the events that led to his alleged injury, or additional documentation that conclusively shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to award him the Purple Heart in this case.

2.  With respect to the removal of the Article 15, dated 30 December 1966:

	a.  on 30 December 1966, he acknowledged receipt of the notification of his commanding officer's intent to impose NJP against him for absenting himself from his appointed place of duty from 10 to 11 November 1966 and disobeying a lawful order on 29 December 1966.  After consulting with counsel, declining trial by a court-martial, and declining to submit matters in extenuation, mitigation, and defense, he accepted NJP for the above offenses.  His punishment consisted of a suspended reduction to PFC/E-3 and 14 days of restriction and extra duty.  He elected not to appeal his punishment.  The DA Form 2627-1 is appropriately filed in his MPRJ and he has provided no reason to remove it. 

	b.  Less than a month later, on 27 January 1967, he again violated the UCMJ which led the imposing officer to vacate the punishment and order the unexecuted portion of the punishment duly executed.  Accordingly, the applicant was reduced to PFC/E-3 on 27 January 1967.  

	c.  The applicant had the opportunity to turn down this Article 15 and demand trial by court-martial at the time it was issued.  He declined to do so.  A commander's decision cannot or should not be reversed without compelling evidence it was unlawful or egregiously unfair.  The applicant has presented no such evidence and, therefore, is not entitled to have the Article 15 expunged from his record.



3.  With respect to the removal of the Article 15, dated 22 May 1967:

	a.  On 22 May 1967, he acknowledged receipt of the notification of his commanding officer's intent to impose NJP against him for failing to go at the time prescribed to his appointed place of duty on 20 May 1967.  After consulting with counsel, declining trial by a court-martial, and declining to submit matters in extenuation, mitigation, and defense, he accepted NJP for the above offense.  His punishment consisted of a reduction to PVT/E-2, 14 days of restriction and extra duty, and a $4.00 fine.  He also elected not to appeal his punishment.  This DA Form 2627-1 is also appropriately filed in his MPRJ and he has provided no reason to remove it. 

	b.  He again had the opportunity to turn down this Article 15 and demand trial by court-martial at the time it was issued.  He declined to do so.  Again, a commander's decision cannot or should not be reversed without compelling evidence it was unlawful or egregiously unfair.  The applicant has presented no such evidence and, therefore, is not entitled to have the Article 15 expunged from his record.

4.  With respect to his rank/grade, the result of his first Article 15 was his reduction to PFC/E-3 on 27 January 1967 and the result of the second Article 15 evidence was his reduction to PV2/E-2 on 22 May 1967.  There is no evidence in his records and he did not provide any evidence that shows he was promoted back to SP4/E-3 prior to his separation.  His rank and grade are appropriately shown on his DD Form 214.  There is insufficient evidence to show otherwise. 

5.  The applicant's service in Vietnam and his country is noted.  Additionally, his personal hardships since leave Vietnam are also noted.  However, he has provided no evidence of his entitlement to the Purple Heart, the removal of his Article 15s, or the restoration of his former grade of E-4. 

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)                                         AR20110002718



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ABCMR Record of Proceedings (cont)                                         AR20110002718



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