IN THE CASE OF:	  

		BOARD DATE:  6 March 2012

		DOCKET NUMBER:  AR20110018182 


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 that his records be corrected by showing that he was promoted to the pay grade of E-5, that he was a prisoner of war (POW) and that he be awarded the Purple Heart.

2.  The applicant states that he returned from Vietnam without his records and since the fire in St. Louis, Missouri his records have not been available.

3.  The applicant provides two pages of documents from the Department of Veterans Affairs (VA).

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 enlisted in the Regular Army in Ashland, Kentucky on 28 June 1968 for a period of 2 years.  He completed his basic training at Fort Knox, Kentucky and his advanced individual training as a cannoneer at Fort Sill, Oklahoma before being transferred to Vietnam on 18 November 1968.

3.  He was assigned to B Battery, 6th Battalion, 29th Artillery Regiment, 4th Infantry Division.  He was advanced to the pay grade of E-4 on 29 September 1969.  

4.  He departed Vietnam on 17 November 1969 and his clearance papers and orders issued upon his departure show he was serving in the pay grade of E-4. He was transferred to Fort Bragg, North Carolina where he remained until he was honorably released from active duty (REFRAD) on 26 June 1970 due to the expiration of his term of service (ETS).  His DD Form 214 issued at the time of his REFRAD shows that he was REFRAD in the pay grade of E-4 and that he was awarded the National Defense Service Medal, the Vietnam Service Medal and the Republic of Vietnam Campaign Medal.

5.  A review of the applicant’s official personnel, finance and medical records failed to show any evidence of the applicant being promoted to the pay grade of E-5 or being on a promotion standing list.  Those records also fail to show that he was ever a POW or that he was wounded in action against the enemy or that treatment was made a matter of record for such injuries.  Additionally, his separation orders reflect his pay grade as E-4.

6.  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.

7.  Army Regulation 600-8-22 (Military Awards) states the Prisoner of War Medal was authorized on 8 November 1985 and is awarded to individuals who in past armed conflicts were taken prisoner or held captive after 5 April 1917.  The Prisoner of War Medal is to be issued only to those U.S. military personnel and other personnel granted creditable U.S. military service who were taken prisoner and held captive:

* while engaged in an action against an enemy of the United States
* while engaged in military operations involving conflict with an opposing foreign force
* while serving with friendly forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party
* by foreign armed forces that are hostile to the United States, under circumstances which the Secretary concerned finds to have been comparable to those under which persons have generally been held captive by enemy armed forces during periods of armed conflict

8.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing discharge documents.  It directs that, in the case of prisoners of war, the unit of assignment, country, and dates of capture and release will be entered in the “Remarks” section of the discharge document.

9.  Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214.  It provides that the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  Only information that can be verified from official records is authorized for entry on the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his records should be corrected to show that he was promoted to the pay grade of E-5, that he was a POW and that he should be awarded the Purple Heart have been noted and appear to lack merit.

2.  The applicant has failed to show through the evidence of record and the evidence submitted with his application, sufficient evidence to support any or all of his contentions.

3.  His records clearly show that he was serving in the pay grade of E-4 at the time of his REFRAD and there is no evidence to show that he was ever a POW or that he was wounded as a result of enemy action and that treatment for such wounds was made a matter of record.

4.  Therefore, in the absence of such evidence, there appears to be no basis to grant his request.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X __  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _  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)                                         AR20110018182





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ABCMR Record of Proceedings (cont)                                         AR20110018182



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