IN THE CASE OF:	  

		BOARD DATE:	  18 December 2014

		DOCKET NUMBER:  AR20140006757 


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 award of the Purple Heart and promotion to the rank/grade of sergeant (SGT)/E-5. 

2.  The applicant states, in effect, he mistakenly rejected the Purple Heart.  Additionally, he never received his rank of SGT/E-5 for carrying the M-60 Machine Gun and serving as a squad leader for the last 4.5 months of his tour in Vietnam.  He was a member of Company A, 5th Battalion, 46th Infantry, 198th Infantry Brigade, Americal Division, in Vietnam from 4 November 1969 to 
23 October 1970.  He became a squad leader around 15 May 1970.  He was overlooked for advancement to E-4 until April 1970.  Two new replacements came into the 3rd Platoon in January 1970 and were promoted from E-2 to E-4 by February 1970. 

3.  The applicant does not provide any 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's records show he enlisted in the Regular Army on 4 June 1969 in the rank/grade of private/E-1.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman). 

3.  He served in Vietnam from 4 November 1969 to 3 November 1970.  He was assigned to Company A, 5th Battalion, 46th Infantry Regiment.

4.  On 11 May 1970, Headquarters, Americal Division, published Special Orders (SO) Number 131 advancing him to specialist four (SP4)/E-4 effective 4 April 1970.  

5.  On 13 October 1970, Headquarters, Americal Division, published SO Number 286 reassigning him to the U.S. Army Vietnam Returnee Detachment, effective 30 October 1970, with an ultimate reassignment to Fort Hood, TX.  These SO listed his rank as SP4. 

6.  On 30 November 1970, Headquarters, 2nd Armored Division, Fort Hood, TX, published SO Number 334 assigning him to the 7th Battalion, 6th Infantry, Fort Hood.  These SO listed his rank as SP4. 

7.  On 20 January 1971, he underwent a separation physical at Fort Hood.  The Standard Form 88 (Report of Medical Examination) listed:

* his rank as SP4
* he had a healed ulcer on his right foot

8.  On 11 February 1971, Headquarters, 2nd Armored Division, Fort Hood, TX, published SO Number 42 assigning him to the Transfer Point at Fort Hood for separation out-processing effective 10 March 1971.  These SO listed his rank as SP4. 

9.  There are no documents in his records that confirm he appeared before a promotion board at the battalion level or that his name was incorporated on a promotion standing list.  Likewise, his records do not contain orders promoting or advancing him to the rank of SGT/E-5.



10.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20 (Enlisted Qualification Record) shows the highest rank/grade he held was that of SP4/E-4.  

11.  There is no evidence of record that shows he was injured or wounded as a result of hostile action or that he was awarded the Purple Heart.  Nothing in several typical sources show he was wounded/injured as a result of hostile action:

	a.  Item 40 (Wounds) of his contemporaneous DA Form 20 does not show a combat wound or injury.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9, stated a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization would be entered in item 40 of the DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in item 40.

	b.  Item 41 (Awards and Decorations) of his DA Form 20 does not list the Purple Heart as an authorized award.

	c.  A review of the Awards and Decorations Computer Assisted Retrieval System maintained by the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders for the Purple Heart pertaining to the applicant.

	d.  His name is not shown on the Vietnam casualty listing.  This is a Microfiche Listing of Vietnam Era Casualties that is used to verify entitlement to the Purple Heart.

	e.  His records do not contain an official Army message or a Western Union telegram notifying his next of kin of an injury or wound.  This was the proper notification of injuries at the time.

	f.  His separation Standard Form 88 does not list any combat injuries or treatment. 

11.  He was honorably released from active duty on 8 March 1971 and transferred to the U.S. Army Reserve Control Group (Annual Training).  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows in: 


* items 5a (Grade, Rate, or Rank) and 5b (Pay Grade), SP4 and E-4 respectively 
* item 6 (Date of Rank), 4 April 1970
* item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), does not list the Purple Heart 

12.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained while in action against and 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.

	a.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:

* injury caused by enemy bullet
* shrapnel
* or other projectile created by enemy action
* injury caused by enemy placed mine or trap
* injury caused by enemy released chemical, biological, or nuclear agent
* injury caused by vehicle or aircraft accident resulting from enemy fire and/or concussion injuries caused as a result of enemy generated explosions

	b.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows:  

* frostbite, trench foot injuries, and heat stroke
* food poisoning not caused by enemy agents, chimerical agents, and    nuclear agents not released by the enemy 
* battle fatigue, disease not directly caused by enemy agents
* accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action
* self-inflicted wounds, except when in the heat of battle and not 
* involving gross negligence 
* post-traumatic stress disorders
* jump injuries not caused by enemy action

13.  Army Regulation 600-200, in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel.  Chapter 7 contained Army-wide promotion policy and procedures.  It stated, in part, that the promotion of enlisted personnel to grade E-5 through E-9, appointments, grade reductions, and grade restoration were announced in orders.  

14.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214.  It states items 5a and 5b show the active duty rank and pay grade at time of the Soldier's separation; the rank is taken from the Soldier’s promotion/reduction orders; and item 6 shows the date of rank.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the Purple Heart: 

	a.  The criteria for the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.

	b.  The applicant's service record is void of any documentary evidence that shows he was wounded or injured as a result of combat.  His name is not listed on the Vietnam casualty listing.  His separation physical does not list a combat injury.  There is nothing in multiple typical sources that confirm he was wounded as a result of hostile action or that he required treatment by medical personnel.

	c.  The applicant's contention and sincerity are not in question.  However, in the absence of documentation that conclusively shows he was wounded or injured as a result of enemy action and treated for those wounds, there is an insufficient evidentiary basis for awarding him the Purple Heart.

2.  With respect to promotion to the rank of SGT/E-5, the evidence of record shows that at the time of separation, 8 March 1971, the applicant held the rank/grade of SP4/E-4.  There is no evidence in his records and he provides none that show he appeared before a promotion board or was recommended for promotion to the rank/grade of SGT/E-5.  




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)                                         AR20140006757



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ABCMR Record of Proceedings (cont)                                         AR20140006757



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