BOARD DATE: 20 September 2011
DOCKET NUMBER: AR20110005253
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 promotion to sergeant/E-5 and award of the Purple Heart.
2. The applicant states:
* he was in charge of his section which was the "number one gun"
* he was doing a sergeant's job
* he went to help a wounded Soldier during a mortar attack in 1967 and was hit with small fragments in his head and left side of his body
3. The applicant provides:
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DD Form 215 (Correction to DD Form 214)
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. He was inducted into the Army of the United States on 8 April 1966. He served as a field basic artilleryman in Vietnam from 22 December 1966 to 21 December 1967.
3. Separation orders, dated 4 April 1968, show he was released from active duty on 8 April 1968 in the rank and pay grade of "SP5 E5" [specialist five/E-5] and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining service obligation.
4. Item 5a (Grade, Rate or Rank) of his DD Form 214 shows the entry "SP4 (T)" [specialist four (temporary)]. Item 5b (Pay Grade) shows the entry "E4." Item 6 (Date of Rank) shows the entry "28 AUG 67" [28 August 1967]. Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) does not show the Purple Heart as an authorized award.
5. Item 33 (Appointments and Reductions) of his DA Form 20 shows he was appointed to the temporary rank of specialist four/E-4 effective 28 August 1967.
6. There are no orders showing the applicant was promoted to E-5 in the available records.
7. His pay records are not available.
8. There are no orders for the Purple Heart in the available records.
9. Item 41 (Awards and Decorations) of his DA Form 20 (Enlisted Qualification Record) does not show the Purple Heart and item 40 (Wounds) of his DA Form 20 is blank. His name does not appear on the Vietnam casualty roster.
10. 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 any orders for the Purple Heart pertaining to the applicant.
11. He was honorably discharged from the USAR (Standby Reserve) on 7 April 1972. His discharge orders show his rank as specialist four.
12. Army Regulation 635-5 (Separation Documents) prescribes policies and procedures regarding separation documents. This regulation states the grade, rate, or rank held by an individual at the time of his or her separation, indicating whether permanent or temporary, will be entered in item 3 of the DD Form 214.
13. 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 the wound was the result of hostile action, the wound must have required treatment by military personnel, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. He contends he was doing a sergeant's job and he should have been promoted to sergeant/E-5. However, his DD Form 214 shows his temporary rank and pay grade as specialist four/E-4 at the time of his separation on 8 April 1968. There are no promotion orders in the applicant's records and he did not provide any evidence showing he was promoted to E-5 prior to his separation. In the absence of promotion orders to E-5, his discharge orders which show his rank and pay grade as specialist five/E-5 are not sufficient as a basis for granting his request for promotion to E-5.
2. He contends he was hit with small fragments in his head and left side of his body during a mortar attack in 1967 in Vietnam. However, there is no evidence of record and the applicant did not provide any evidence that shows he was wounded or injured as a result of hostile action in Vietnam. Regrettably, there is insufficient evidence to support award of the Purple Heart in this case.
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 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) AR20110005253
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ABCMR Record of Proceedings (cont) AR20110005253
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