IN THE CASE OF:	  

		BOARD DATE:	    3 January 2012

		DOCKET NUMBER:  AR20110013644


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, award of the Purple Heart and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his rank and pay grade as specialist four (SP4)/E-4. 

2.  The applicant states:

* he was wounded 3 times while in the Republic of Vietnam
* the first time, the bullet hit his vest but did not go through – nonetheless, he was hospitalized
* the second time, while bathing in the South China Sea, he was injured by grabbing cacti as he came under fire – he was hospitalized for 2 weeks
* the third time, while on patrol, his element was ambushed and as the tank's gun went off, his ear drum was blown out – he was sent to the 85th Evacuation Hospital in Qui Nhon, Vietnam, and later was flown to Japan
* these events should be recognized and noted
* he is not able to claim service-connected disability for his post-traumatic stress disorder (PTSD) because his records do not show any combat awards
* he was an E-4 at the time of his discharge, but his DD Form 214 states he was an E-3 [private first class (PFC)] 

3.  The applicant provides no additional evidence.



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 23 February 1966.  He completed training and was awarded military occupational specialty 13F (Automatic Weapons Crewman).  

3.  Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from on or about 13 February 1967 to on or about 24 June 1967.  During this period of service, he was assigned to:

* Battery C, 4th Battalion, 60th Artillery Regiment, U.S. Army Vietnam, from on or about 11 March 1967 to on or about 18 April 1967
* Headquarters and Headquarters Battery, 4th Battalion, 60th Artillery Regiment, U.S. Army Vietnam, from on or about 19 April 1967 to on or about 21 April 1967
* 85th Evacuation Hospital, Vietnam, from on or about 22 April 1967 to on or about 5 May 1967 (patient)
* Military Hospital Detachment, 249th General Hospital, Japan, from on or about 6 May 1967 to on or about 24 June 1967 

4.  Item 33 (Appointments and Reductions) of his DA Form 20 shows he was permanently promoted to SP4, effective 21 December 1966.

5.  On 18 February 1968, he was honorably released from active duty and transferred to the U.S. Army Reserve for the remainder of his service obligation.  His DD Form 214 shows he completed 1 year, 11 months, and 26 days of total active service, including 1 year, 4 months, and 5 days of foreign service.  His DD Form 214 further shows:

   a. Item 5a (Grade, Rate or Rank) and 5b (Pay Grade) contains the entries "SP4 Temporary (T)" and "E4."
b. Item 6 (Date of Rank (DOR)) contains the entry "21 Dec 66."

   c. Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the National Defense Service Medal, Vietnam Service Medal, and the Army Good Conduct Medal.

   d. Item 30 (Remarks) contains the entry "ITEM 5A: PFC E-3 Permanent (P) APTD: 9 SEP 66."

6.  His available record does not contain orders for the Purple Heart, nor does his name appear on the Vietnam casualty roster.  Item 40 (Wounds) of his DA Form 20 is void of any entries.  

7.  A review of the Awards and Decorations Computer Assisted Retrieval System (ADCARS), 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.

8.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained 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.

9.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.

   a. Items 5a and 5b show the rank/grade in which a member was serving at the time of separation with an indication of permanent or temporary; for example, "MSG (T) [master sergeant, temporary], SP4 (P), etc."

b. Item 6 shows the date of rank for the grade shown in item 5a.

		(1)  If the date of rank is different from the date of appointment, enter the date of appointment in item 30 (Remarks).

		(2)  If the grade at the time of separation is not permanent, the permanent grade, date of appointment, and date of rank, if different from date of appointment will be entered in item 30.

   c. Item 30 is used to complete entries too long for their respective blocks and/or as a cross-reference.  An entry is made in item 30 with respect to the grade as follows: 

		(1)  If the date of appointment is different from the date shown in item 6, enter date of appointment as follows:  "Item 6 – Date of Appointment 15 August 1955."

		(2)  If the grade shown in item 5 is not permanent, enter the permanent grade, date of appointment, and date of rank if different from date of appointment, as follows:  "Item 5 – MSG (P) (E-8), Appointed 1 August 1988" or Item 5 – SP5 (T), Appointed 13 September 1958, Date of Rank 1 August 1958."
  
DISCUSSION AND CONCLUSIONS:

1.  With respect to his rank, the evidence of record shows the applicant was permanently appointed to the rank/grade of SP4/E-4 on 21 December 1966.     As such, he is entitled to correction of items 5a and 30 to show his rank/grade as SP4 (P) and to remove the incorrect entry "ITEM 5A: PFC E-3 (P) APTD: 9 SEP 66."

2.  With respect to the Purple Heart, the applicant was evacuated to military medical facilities as a patient during his service in the Republic of Vietnam; however, neither his available records nor the Vietnam casualty roster provide evidence his wounds resulted from hostile action.  Absent further substantiating evidence, such as morning reports, witness statements, casualty reports, etc., there is an insufficient basis to grant this portion of the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION






BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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:
* amending item 5a of his DD Form 214 to delete the entry "SP4 (T)" and add the entry "SP4 (P)"
* amending item 30 of his DD Form 214 to delete the entry "ITEM 5A: PFC E-3 (P) APTD: 9 SEP 66."

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 the Purple Heart. 



      ___________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)                                         AR20100015543



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ABCMR Record of Proceedings (cont)                                         AR20110013644



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