IN THE CASE OF:	  

		BOARD DATE:	21 May 2015

		DOCKET NUMBER:  AR20140017178


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 previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20140000842, dated 14 August 2014.  Specifically, he requests:

* award of the Purple Heart for wounds received during his service in the Republic of Vietnam
* correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was awarded the Purple Heart
* correction of his DD Form 214 to show he was separated in the rank/grade of sergeant (SGT)/E-5, vice specialist four (SP4)/E-4

2.  The applicant states:

* in March 1970, he was setting up Landing Zone (LZ) Caroline when the unit came under mortar attack
* at that time, his right hand was injured and he didn't realize that any shrapnel had entered his body
* in all the years following his discharge from service, he never knew there was shrapnel in his body; a Department of Veterans Affairs (VA) Medical Center primary care physician found the shrapnel in his x-rays
* there are multiple areas in which shrapnel was located – the left chest wall, the right thigh, and the right knee areas
* considering that he had no other exposure since his discharge that could have resulted in metal fragments entering his body, the evidence should be sufficient to prove the shrapnel resulted from the mortar attack while he was in Vietnam
* with respect to his request for correction of his rank as it appears on his DD Form 214, the traffic ticket he submitted as evidence clearly shows his rank as SGT and the photos he submitted show him wearing SGT stripes

3.  The applicant provides:

* two VA Forms 21-4138 (Statement in Support of Claim), dated                19 September and 1 December 2014
* ABCMR Docket Number AR20140000842, dated 14 August 2014
* DD Form 1408 (Armed Forces Traffic Ticket), dated 12 December 1970
* 4 large color photographs taken during his service in Vietnam
* radiology reports from the Veterans Health Information Systems and Technology Architecture (VISTA) Electronic Medical Documentation System, from an examination he underwent on 13 November 2014

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20140000842 on 14 August 2014.

2.  The applicant provides a DD Form 1408, 4 large color photos, and radiology reports from the VISTA Electronic Medical Documentation System.  This evidence was not previously considered by the Board; therefore, this new evidence will now be considered.

3.  The applicant was inducted into the Army of the United States on 17 July 1969.  Upon the completion of his initial entry training, he was awarded military occupational specialty (MOS) 13A (Field Artillery Basic).

4.  His DA Form 20 (Enlisted Qualification Record) contains the following entries:

	a.  Item 31 shows he served in the Republic of Vietnam from on or about        15 December 1969 through on or about 17 February 1971.

	b.  Item 33 (Appointments and Reductions) shows he was promoted to the rank/grade of SP4 on 21 May 1970.  Item 33 does not show he attained the rank/grade of SGT/E-5.  

	c.  Item 38 (Record of Assignments) shows he was assigned to the following units during his service in the Republic of Vietnam:
		(1)  Battery F, 16th Artillery Regiment, from on or about 19 December 1969 through on or about 27 March 1970; 

		(2)  Headquarters and Headquarters Battery, 2nd Battalion, 12th Artillery Regiment, from on or about 28 March 1970 through on or about 31 March 1970; and

		(3)  Service Battery, 2nd Battalion, 12th Artillery Regiment, from on or about 1 April 1970 through on or about 16 February 1971.

	d.  Item 40 (Wounds) does not contain an entry, indicating he had no recorded wounds from his service in Vietnam.
	
	e.  Item 41 (Awards and Decorations) does not show he was awarded the Purple Heart.

5.  There are no orders in his available record that show he was promoted to the rank/grade of SGT/E-5.  However, Unit Orders Number 29, issued by Service Battery, 2nd Battalion, 12th Artillery Regiment, on 16 October 1970, appointed him as an acting noncommissioned officer (NCO) effective that date. 

6.  Special Orders Number 50, issued by Headquarters, U.S. Army Personnel Center, Fort Dix, New Jersey on 19 February 1971, ordered his release from active duty and transfer to the U.S. Army Reserve (USAR).  These orders show his rank as SP4.

7.  He was honorably released from active duty on 19 February 1971 and transferred to the USAR.  The DD Form 214 he was issued shows he was credited with the completion of 1 year, 7 months, and 3 days of total active service, including 1 year, 2 months, and 3 days of foreign service.  Additionally, his DD Form 214 shows or fails to show:  

	a.  Block 5a (Grade, Rate or Rank) and 5b (Pay Grade) shows he was separated in the rank/grade of SP4/E-4.  

	b.  Block 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) does not show he was awarded the Purple Heart.

	c.  Block 30 (Remarks) shows he served in Vietnam from 14 December 1969 through 18 February 1971.

8.  Neither his medical records nor his separation physical are available for review.

9.  There is no documentation in his available service record that indicates he was wounded in combat or was previously awarded the Purple Heart.  Likewise, his name is not listed on the Vietnam casualty roster.

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

11.  He provides a faded and photocopied DD Form 1408 (Armed Forces Traffic Ticket), which appears to be dated 12 December 1970.  In the block titled "Rank/Grade" appears the entry "E-5," indicating he was serving as a SGT at the time he received this traffic ticket.
    
12.  He provides 4 large color photographs taken during his service in Vietnam that show him in various stages of uniform dress.  In each photo, his uniform is adorned with SGT stripes.

13.  He provides radiology reports from the VISTA Electronic Medical Documentation System, from an examination he underwent on 13 November 2014.

	a.  The views of his left knee identified no metallic foreign body.

	b.  The views of his left femur identified no radiopaque foreign body.

	c.  The views of his left chest wall and left ribs showed a subcutaneous metallic density over the lateral left chest wall, approximately 3 millimeters in diameter.

	d.  The views of his right femur showed a small, metallic fragment in the medial soft tissues of the proximal right thigh, measuring .5 centimeters in diameter.  Just below the knee, a linear metallic density adjacent to the tibial tuberosity, measuring .3 centimeters, was noted. 

14.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded to a member of the Armed Forces of the United States who, while serving in any capacity with one of the U.S. Armed Services after 5 April 1917, has been wounded or killed or who has died or may die after being wounded in any action against an enemy of the United States.  Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

15.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed the policies, responsibilities and procedures pertaining to the career management of Army enlisted personnel.  Chapter 7 provided the policies and procedures for promotion and reduction of enlisted personnel.  Paragraph 7-10 contained guidance on appointment of acting NCOs.  It stated, in pertinent part, that unit commanders could appoint qualified individuals as acting corporals and acting sergeants to fill unit vacancies.  It further specified that acting NCOs were not entitled to pay and allowances for such higher grades and that service would not be credited as time in a higher grade for promotion or date of rank purposes.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of the Board's previous decision regarding his request for award of the Purple Heart and correction of his          DD Form 214 to show the Purple Heart and his separation in the rank/grade of SGT/E-5 was carefully considered.

2.  His record is void of any official Army documentation that shows he was wounded, that his wound or wounds resulted from hostile action and were treated by medical personnel, or that such treatment was made part of the official record.  His name is not shown on the Vietnam casualty roster.

3.  He provides radiology reports from the VISTA Electronic Medical Documentation System that show he has shrapnel in his left chest wall, left ribs, and right femur.  He contends this shrapnel resulted from a mortar attack during his service in Vietnam, and he was not, at any time since his return from Vietnam, subject to any type of accident that could explain the presence of the noted shrapnel.  

4.  By his own admission, he did not know he had shrapnel in his body until many years after his return from Vietnam.  This indicates his wounds or injuries, on the date of the mortar attack, were not significant enough to warrant medical treatment or the recording of such treatment in the official record.  

5.  Unfortunately, the submitted evidence does not satisfy the award criteria and is not sufficient to show he should have been awarded the Purple Heart during his service in the Republic of Vietnam.

6.  He contends his DD Form 214 should be corrected to show he was separated in the rank/grade of SGT/E-5.  

7.  The applicant was promoted to SP4 on 21 May 1970.  There are no orders in his record that show he was promoted to the rank/grade of SGT/E-5.  His record shows he was appointed as an acting NCO, in the rank of SGT, effective 16 October 1970, while assigned to Service Battery, 2nd Battalion, 12th Artillery Regiment.  Time served in an acting appointment is not credited as time in a higher pay grade; therefore, it appears the information entered in blocks 5a and 5b is correct and there is no basis to change either item.

8.  In view of the foregoing, there is an inadequate evidentiary basis for granting the applicant's 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 the overall merits of this case are 
insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20140000842 on 14 August 2014.




      _______ _  _ 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)                                         AR20100015543



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ABCMR Record of Proceedings (cont)                                         AR20140017178



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