IN THE CASE OF:	  

		BOARD DATE:  7 August 2012

		DOCKET NUMBER:  AR20120002153 


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:

	a.  his rank be changed to sergeant/E-5; and 

	b.  award of the Purple Heart.

2.  The applicant states, in effect:

* he was an E-5 when he was wounded in Vietnam
* the company commander did not input the proper rank or his award of the Purple Heart
* he could not contest it because he was hospitalized for 15 years   

3.  The applicant provides no documentary 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 
19 September 1967.  He served as a light weapons infantryman in Vietnam from 28 May 1968 until he was wounded on 3 October 1968 and transferred to the United Sates on 23 October 1968 for further medical treatment.  He was released from active duty on 10 April 1969 in the rank of private first class (PFC) and placed on the Temporary Disability Retired List (TDRL) the following day.  He was removed from the TDRL on 30 November 1972 in the rank of PFC and permanently retired with a 40% disability rating.

3.  Item 5a (Grade, Rate or Rank) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the entry "PFC (P)" (permanent).  Item 5b (Pay Grade) shows the entry "E-3."  Item 6 shows the entry "8 Jun 68" (8 June 1968).  His DD Form 214 does not show the Purple Heart as an authorized award.

4.  Orders, dated 8 June 1968, show he was promoted to PFC. 

5.  Item 33 (Appointments and Reductions) of his DA Form 20 shows he was appointed to the permanent grade of PFC effective 8 June 1968. 

6.  There is no evidence of record which shows he was recommended for promotion to E-5 by a promotion selection board and placed on a permanent recommended promotion prior to his placement on the TDRL. 

7.  A Vietnam Casualty Report, dated 5 October 1968, states the applicant was on bunker guard and his weapon accidentally discharged and injured him in the right ankle.

8.  There are no orders for the Purple Heart in the available records.

9.  Item 20 (Wounds) of his DA Form 20 is blank.

10.  His name is not listed on the Vietnam casualty roster.

11.  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 award of the Purple Heart.
12.  Paragraph 5-5 of Army Regulation 600-8-19 (Enlisted Promotions and Reductions) states to standardize promotion qualification throughout the Army Reserve and to ensure promotion of the best qualified Soldiers, recommendation by a promotion selection board and placement on a permanent recommended promotion list is required for all promotions to sergeant and staff sergeant.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  His contention he was an E-5 when he was wounded in Vietnam was noted.  However, since there is no evidence of record which shows he was recommended for promotion to E-5 by a promotion selection board and placed on a permanent recommended promotion list prior to his placement on the TDRL on 11 April 1969, there is insufficient evidence on which to grant his request to change his rank to E-5.

2.  The applicant contends he was wounded in Vietnam and is entitled to the Purple Heart.  However, evidence shows he was injured on 3 October 1968 in Vietnam when his weapon accidentally discharged and struck him in his right ankle, not as a result of hostile action.  

3.  Army Regulation 600-8-22 establishes basic requirements for the Purple Heart and all other awards.  The Purple Heart requires:

* a wound the result of hostile action
* treatment of the wound by military medical personnel
* documentation of the wound in official records

4.  There is no evidence in the available record that shows he was wounded as a result of hostile action in Vietnam.  Therefore, there is insufficient evidence on which to base 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 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)                                         AR20120002153





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ABCMR Record of Proceedings (cont)                                         AR20120002153



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