BOARD DATE:	  3 September 2013

		DOCKET NUMBER:  AR20130001480 


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:

	a.  award of the Purple Heart; 

	b.  his rank be reinstated to specialist four (SP4)/E-4; and

	c.  his general discharge be upgraded to honorable. 

2.  The applicant states:

	a.  he requests award of the Purple Heart for his forehead wound received from shrapnel on 20 August 1969 in Vietnam during gunfire and mortar rounds.  He was treated by a medic and he has a scar.  He was never given the Purple Heart for being wounded. 

	b.  he wants his rank reinstated from private/E-1 to SP4/E-4, even though his rank of sergeant/E-5 was awarded to him.  From April 1968 to April 1969, while serving in Germany, he came down on levy for Vietnam, and his promotion orders never caught up to him.  He was an acting E-5 pending clearance and orders.  His court-martial on 16 June 1970 (lost days) was given after his horrible chain of events while in Vietnam and after Vietnam. 

	c.  he has lost days listed and he was in horrific bloodshed events in Vietnam.  He lost his best friend.  He had a major breakdown.  He also had malaria, hepatitis, and yellow jaundice. 
	d.  the lost days are embarrassing, but he has answers for the lost days.  He has a letter from his Congressman stating that he was a patient at the U.S. Ireland Army Hospital from September 1969 to October 1969.  

3.  The applicant provides:

* Two applications
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Service medical records
* Pages 1 and 4 of his DA Form 20 (Enlisted Qualification Record)
* Letter from his sister
* Letters from his doctors
* Photographs
* Special Court-Martial Order (SPCMO), dated 16 June 1970

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's military records are not available for review.  His record is void of the specific facts and circumstances surrounding his discharge action.
However, this case is being considered using reconstructed records that primarily consists of the records provided by the applicant.

3.  His DD Form 214 shows:

* he enlisted in the Regular Army on 25 September 1967 for a period of 
      3 years  
* his military occupational specialty was 11B (light weapons infantryman)
* he served in Vietnam from 14 June 1969 to 13 June 1970  
* in item 5a (Grade, Rate or Rank) PV (private)
* in item 5b (Pay Grade) E1
* he has 196 days of lost time
* he was discharged under honorable conditions on 30 June 1970 under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unsuitability due to character and behavior disorders

4.  His DD Form 214 does not show the Purple Heart as an authorized award. 

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

6.  He provides a Standard Form 88 (Report of Medical Examination), dated 
16 June 1970, which shows he underwent a separation physical examination which makes no mention of any injuries or wounds sustained as a result of hostile action in Vietnam.  Item 18 (Head, Face, Neck and Scalp) of this form shows he was rated normal.  

7.  He also provides page 4 of his DA Form 20 which shows he was wounded on 
20 August 1969 and the entry "FW" (fragment wound) Head" is shown in item 
40 (Wounds).  

8.  His name does not appear on the Vietnam casualty roster.

9.  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 U.S. Army Human Resources Command Military Awards Branch failed to reveal any orders for the Purple Heart pertaining to the applicant.

10.  He provides SPCMO, dated 16 June 1970, which shows he was convicted of being absent without leave (AWOL) (from 21 September 1969 to 23 October 1969 and from 17 November 1969 to 27 April 1970) on 12 June 1970.  He was sentenced to be restricted to the limits of the company area for 
2 months, to perform hard labor without confinement for 2 months, to forfeit $80.00 pay per month for 2 months, and to be reduced from SP4/E-4 to E-1.  On 16 June 1970, the convening authority approved the sentence.   

11.  He provides service medical records which show he was diagnosed with combat exhaustion, hepatitis, malaria, and jaundice.

12.  He also provides medical documentation attesting to his psychiatric treatment.

13.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within that board's 15-year statute of limitations.

14.  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 medical personnel, and the medical treatment must have been made a matter of official record.

15.  Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unfitness and unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier and he met retention medical standards.  Unsuitability included inaptitude; character and behavior disorders; apathy, defective attitudes, and inability to expend effort constructively; alcoholism; and enuresis.  A general under honorable conditions or an honorable discharge was considered appropriate.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he sustained a forehead wound on 20 August 1969 in Vietnam and is entitled to the Purple Heart.

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

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

3.  There are no orders for the Purple Heart in the available records.  Contemporaneous medical documentation shows his head injury was rated normal on 16 June 1970.  His name does not appear on the Vietnam casualty roster.  In the absence of corroborating evidence showing he was injured and treated for wounds as a result of hostile action in Vietnam, the entry in item 40 of his 
DA Form 20 alone is not sufficient as a basis for award of the Purple Heart.

4.  He wants his rank restored to SP4/E-4.  However, evidence provided by the applicant shows he was reduced from SP4/E-4 to private/E-1 as the result of a special court-martial conviction on 12 June 1970.  A few weeks later he was discharged and his DD Form 214 properly shows his rank and pay grade as private/E-1.  Therefore, there is insufficient evidence on which to base granting his request to reinstate his rank.     

5.  He requests upgrade of his general discharge to honorable.  In the absence of evidence to the contrary it must be presumed his separation processing was administratively correct and in conformance with applicable regulations.  Without the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  Therefore, there is an insufficient evidentiary basis for granting the applicant an honorable discharge.

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)                                         AR20130001480





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ABCMR Record of Proceedings (cont)                                         AR20130001480



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