IN THE CASE OF:  	  

		BOARD DATE:  27 January 2015	  

		DOCKET NUMBER:  AR20140010331 


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 reconsideration of the portion of his earlier request to correct his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he held the rank/grade of sergeant (SGT)/E-5 instead of specialist five (SP5)/E-5 at the time of his release from active duty. 

2.  As a new issue, he requests award of the Purple Heart for an injury sustained while deployed in Vietnam.  He also requests correction of his DA Form 20 (Enlisted Qualification Record) as follows:

* item 19 (Religion) to show "Roman Catholic"
* item 17 (Physical Status) show his height as 5 foot, 10 inches
* item 20 (Birthplace and Citizenship) to show "Permanent Resident"
* item 27 (Military Education) to add his on-the-job training as a 76Y (General Supply Specialist)
* item 28 (Specialized Training) to correct the year shown 1967 for 4 entries
* item 38 (Record of Assignments) to add his temporary duty (TDY) assignment for 3 weeks at the School for Chemical, Biological, and Radiological (CBR) Warfare Training
* item 41 (Awards and Decorations) be amended to add the awards shown on his DD Form 215

3.  The applicant states, in effect:

	a.  with regard to his request to reconsider the Board's decision on his rank, he provided a copy of General Orders Number 9, issued by Headquarters, Oversea Replacement Station, and states he was never given orders changing his rank back to specialist five.  He was still wearing the rank/grade of sergeant/E-5 at the time of his release from active duty.  Additionally, he was a squad leader from January 1967 through 28 August 1968 and served numerous times as Sergeant of the Guard and in the capacity of a sergeant while in combat.  He was promoted to specialist five in record time and was very proud to have served in the United States Army even though he was a German citizen.

	b.  regarding the award of the Purple Heart, he believes he is qualified to receive this award.

	c.  as to his request to correct his DA Form 20, this is a final request to correct all known errors or omissions.  He asks these corrections be made in the name of justice and fairness.

4.  The applicant provides:

* two letters
* two DD Forms 214
* a DD Form 215 (Correction of DD Form 214)
* a self-authored "stressor # 9" statement, titled "chronology of events"
* a copy of his DA Form 20 with highlighted entries showing the corrections he requests
* notarized letter of support

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.  With regard to the rank/grade issue: 

	a.  The applicant requests reconsideration of the decision, shown in Army Board for Correction of Military Records (ABCMR) Docket Number AR20110020164, dated 19 April 2012, where he had asked to have his DD Form 214 show his rank as sergeant.  

	b.  Army Regulation 15-185 (ABCMR) sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  

	c.  The applicant's request for reconsideration was not submitted within one year of the Board's decision (19 April 2012), and therefore does not meet the time requirement.  As a result, the issue of his rank/grade will not be discussed further in the Record of Proceedings (ROP). 

3.  As shown and listed in item 2 (THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE) the applicant requests multiple corrections to his DA Form 20.

4.  The applicant's records show he enlisted in the Regular Army on 21 February 1966.  Following initial training, he was awarded military occupational specialty 62E (Construction Machine Operator).  The highest rank/grade attained while on active duty was SP5/E-5.

5.  He served in Vietnam from on or about 1 September 1967 to on or about 28 August 1968.  He was assigned to Company C, 36th Engineer Battalion. 

6.  He was honorably released from active duty on 20 February 1969.  His DD Form 214, as amended by his DD Form 215, does not show the Purple Heart. 

7.  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 shows he was wounded or injured as a result of hostile action.

	a.  His medical records, which would have listed any injuries and treatment, are not available for review with this case.  

	b.  Item 40 (Wounds) of his 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.

	c.  His personnel records do not contain an official Army message or a Western Union telegram notifying his next of kin of an injury or wound sustained in action.  This was the proper notification procedure for injuries at the time.

	d.  His name is not shown on the Vietnam casualty listing.  This is a listing of Vietnam era casualties commonly used to verify entitlement to award of the Purple Heart.

	e.   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.

8.  The applicant provides a self-authored statement wherein, regarding his request for a Purple Heart, he essentially states:

* on 7 February 1968, two of his fellow Soldiers were killed by mortar fire; as a result, the blast wall of one of the bunkers was extended
* during an attack, while he was positioned at the exterior of the new blast wall, something told him to move; momentarily thereafter a mortar struck where he had been
* the blast was so strong it blew his steel helmet off his head and threw him into the exterior bunker wall, where he sustained a small cut on his right knee
* he did not seek medical attention for this injury, but he remembers there were two witnesses to this event

9.  He provides a letter of support, which essentially states:

* the author was a member of the Women's Army Corp and, from 1967 to 1969, was attached to the Personnel Center at Fort Lewis, WA
* she met the applicant in May 1967 while he was attending specialized training; he was shipped to Vietnam in August 1967 and he returned in September 1968
* they were married on 7 September 1968 in Tucson, AZ and have lived in Eugene/Veneta-Lane County since 1972
* she supports the applicant's efforts to correct his military records

10.  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.  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

11.  Army Regulation 15-185 (ABCMR) states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the applicant's request for the award of the Purple Heart, he contends:

* he was injured as a result of a mortar blast during his deployment in Vietnam
* he had two witnesses who saw this occur
* he did not seek medical treatment for his injury

2.  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.

3.  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.  Further, he acknowledged that he did not seek treatment by medical personnel. 

4.  The applicant's contention and sincerity are not in question.  However, there is an insufficient evidentiary basis for awarding him the Purple Heart.


5.  With regard to the DA Form 20: 

	a.  The DA Form 20 is a snapshot of a Soldier's personnel data as it was at the time the form was produced and it was used as an internal management tool to assist officials processing a Soldier's assignment/reassignment, promotions, and career progression.  The DA Form 20 is no longer active or accessible after a Soldier's discharge.  Additionally, the DA Form 20 became obsolete in the mid-1970s when it was replaced by the DA Form 2-1 (Personnel Qualification Record), which is also now obsolete.  

	b.  The ABCMR normally limits corrective action to documents that can be individually reviewed after a Soldier's separation.  The DA Form 20 and its successor, the DA Form 2-1, are not normally accessible by individuals other than the Soldier.  Therefore, his DA Form 20 should not be corrected.

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 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)                                         AR20140010331





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ABCMR Record of Proceedings (cont)                                         AR20140010331



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