IN THE CASE OF:	  

		BOARD DATE:	  12 June 2012

		DOCKET NUMBER:  AR20110019830 


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 an upgrade of his undesirable discharge to an honorable discharge.  In addition, the applicant requests correction of his military records to show award of the:

* Purple Heart
* Combat Infantryman Badge
* Vietnam Service Medal
* Republic of Vietnam (RVN) Campaign Medal with Device (1960)

2.  The applicant states, in effect:

* He was wounded in action during his military service and he was exposed to Agent Orange
* While in the service he had three surgeries and was ordered to return to duty before he was fully recovered
* He was subjected to discrimination
* He became addicted to heroin after the Army gave it to him for medical treatment
* He suffers from mental disorders as well as other medical conditions
* The Combat Infantryman Badge, Purple Heart, Vietnam Service Medal, and the RVN Campaign Medal with Device (1960) are not shown on his records


* he served honorably during his military service and his records should reflect an honorable discharge
* He is unable to obtain veteran's benefits

3.  The applicant provides numerous medical documents from his military medical record, civilian medical record, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and a statement of support from his daughter. 

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.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Authorized or Awarded) of the applicant’s DD Form 214 shows he was awarded:

* National Defense Service Medal
* Vietnam Service Medal 
* RVN Campaign Medal with Device (1960) (shown as Vietnam Campaign Medal)

3.  Since the applicant’s DD Form 214 already shows he was awarded the Vietnam Service Medal and the RVN Campaign Medal with Device (1960), this portion of the applicant's request will not be discussed further in these proceedings.

4.  The applicant enlisted in the Regular Army on 14 June 1968 for a 3-year term of service.  He successfully completed the training requirements and he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

5.  The applicant also successfully completed airborne training on 29 November 1968.  He arrived in the RVN on 9 January 1969 and was assigned to Company A, 2nd Battalion (Airborne), 503rd Infantry, 173rd Airborne Brigade, where he performed duties as a rifleman and machine gunner.

6.  Medical records show the applicant was recommended for surgery due to a hernia.  On 20 August 1969, the recommendation was approved and surgery was performed at the 67th Evacuation Hospital, RVN. 

7.  The applicant was assigned to the Medical Holding Company (MHC), 7th Field General Hospital, Camp Oji, Japan, on 1 September 1969.  Records further show he was assigned to the Medical Holding Detachment, Kimbrough Army Hospital, Fort George Meade, MD, on 16 September 1969.

8.  There is no evidence the applicant was ordered to return to duty before he was fully recovered after medical procedures.

9.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) is blank. Item 41 (Awards and Decorations) does not show award of the Purple Heart or Combat Infantryman Badge.  

10.  There are no general orders in the applicant’s service personnel records that show he was awarded the Purple Heart or Combat Infantryman Badge.  There also is no evidence that shows he was treated for wounds as a result of hostile action in the RVN.  His name is not listed on the Vietnam casualty listing.

11.  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 United States Army Human Resources Command, failed to reveal any orders for the Purple Heart or the Combat Infantryman Badge pertaining to the applicant.

12.  There is no evidence in the available records which shows the applicant was directly involved in ground combat during his military service.

13.  The applicant's complete discharge proceedings are not available for review with this case; however, sufficient documents are available for a fair and impartial review.

14.  On 15 June 1970, charges were preferred against the applicant for being absent without leave (AWOL) during the period 4 October 1969 through 
8 June 1970. 

15.  On 16 June 1970, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

16.  The applicant's DD Form 214 shows he was discharged on 13 July 1970 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  The applicant’s DD Form 214 further shows he had completed 1 year, 4 months, and 25 days of creditable active service with 246 days of lost time due to being AWOL.

17.  There is no evidence in the available records which indicates the applicant's acts of indiscipline were a result of medical issues and/or discrimination.

18.  There is no evidence in the available records which indicate the applicant was diagnosed with and/or treated for heroin dependency during his military service.

19.  There is no evidence in the available records that shows he sought assistance from his chain of command, a chaplain, or other community support services personnel for help with drug dependency and/or discrimination.

20.  The applicant's service personnel records show he indicated at the time of his discharge that he was in excellent health and had no existing medical conditions.

21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  At the time, an undesirable discharge was normally considered appropriate.

22.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

23.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

24.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that 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.

25.  Army Regulation 600-8-22 states there are basically three requirements for award of the Combat Infantryman Badge.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his undesirable discharge be upgraded to an honorable discharge.  

2.  The applicant's service personnel records show he only completed 1 year, 
4 months, and 25 days of military service with 246 days of lost time due to being AWOL.  Based on his indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel, which are required for the issuance of an honorable or general discharge.

3.  The applicant’s administrative separation is presumed to have been accomplished in accordance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and his rights were fully protected throughout the separation process.

5.  In view of the foregoing, there is no basis for upgrading the applicant's discharge to either honorable or general.

6.  The applicant’s request for award of the Purple Heart was carefully considered and it was determined there is insufficient evidence to support this request.

7.  In order to support award of the Purple Heart the applicant must have been wounded in action and there must be evidence the wound for which the award is being made was received as a result of enemy action.  The applicant must have required medical treatment by military medical personnel and this medical treatment must have been made a matter of official record.

8.  The applicant's service record contains no medical treatment records or other documents that confirm he was wounded as a result of enemy action or treated for a combat-related wound or injury while serving in the RVN.  

9.  The regulatory burden of proof necessary to support award of the Purple Heart has not been met; therefore, it would not be appropriate to award the applicant the Purple Heart.

10.  The available evidence shows the applicant was awarded an infantry MOS and he served in an infantryman position with Company A, 2nd Battalion (Airborne), 503rd Infantry, 173rd Airborne Brigade, before being assigned to MHC, 7th Field General Hospital, Camp Oji, Japan.  

11.  However, there is no evidence in the available records and the applicant has provided no evidence that shows he participated in active ground combat as an infantryman.  Therefore, there is insufficient evidence to show the applicant met all the criteria required for award of the Combat Infantryman Badge.

12.  The applicant contends that he was discriminated against and threatened.  However, there is no evidence in his available records that shows he was threatened or discriminated against.  There is no evidence in his available records that shows he sought assistance from his chain of command, a chaplain, or other community support services personnel for help. 

13.  The applicant contends that he was exposed to Agent Orange while serving in the RVN.  However, there is no evidence in the applicant’s medical records that show he was diagnosed or treated for exposure to Agent Orange.

14.  The applicant contends that he has a variety of service connected ailments.  The applicant clearly indicated that at the time of discharge he was in excellent health and did not have any medical ailments.

15.  Although the applicant alleges that he was forced to return to duty before he was fully recovered from medical procedures there is no evidence in the available records and the applicant has provided no evidence which supports this claim.

16.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for benefits.

17.  Based on the foregoing, there is no basis for granting the requested relief.


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)                                         AR20110019830



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ABCMR Record of Proceedings (cont)                                         AR20110019830



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