MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 January 2001                  
	DOCKET NUMBER:   AR2000040280

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian 		Chairperson	
	Ms. Brenda F. Hirschi 		Member	
	Mr. Thomas E. O’Shaughnessy 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In essence, to correct a line of duty (LOD) determination, dated 3 May 1968, from ”Not in Line of Duty-Due to Own Misconduct" to "In Line of Duty." 

APPLICANT STATES:  In essence, that he was not aware of a negative LOD determination in his case.  He thought that it was favorable.  He recently was advised by the Department of Veterans Affairs (DVA) that his records contain a negative LOD determination.  Therefore, he is denied further adjustment of his 
70 percent disability rating from the DVA.  

He submits a copy of the LOD investigation in question.  He essentially questions the facts in the case, that he had appealed the LOD in 1968, and it had been reversed.  However, it is not in either his DVA or his official military personnel file (OMPF) which he has checked.  He notes that a medical evaluation in the packet made out in June 1968, after his appeal, shows that the injuries he received were in the line of duty.   

He questions the facts and the manner of the investigation.  The investigating officer was from his own unit and that he was under sedation at the time that he gave his statement to the investigators.  He remembered little of the incident or how he went through medical evacuation channels.  If he knew he was a subject of the investigation, he would have requested a lawyer.  

He does not want a new investigation, but he feels that he is somewhat of a "fall guy".  There was a lot of unexploded ordnance in the rest area where his unit was placed.  He questions the fact that another solider had the grenade, and did not attempt to properly dispose of it, but left it with the applicant's web gear.  The other soldier with him, who was even more seriously wounded, was also supposedly charged with being a suspect in the incident.  

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army for 3 years on 18 October 1966.  He was trained as a medical specialist (MOS 91B).  He was advanced to pay grade E-2 during training on 18 February 1967.  On 10 May 1967, he was assigned to an Army Security Agency station in California.  On 11 May 1967, he was advanced to pay grade E-3.  

On 27 July  and 8 November 1967, he received nonjudicial punishments under the provisions of Article 15, Uniform Code of Military Justice while at his duty station in California for failure to report for duty and for failure to sign out on leave.  His punishments included two forfeitures of $19.00 pay and 14 days restriction for the July offense.  

On 24 November 1967, the applicant was assigned to the Republic of Vietnam (RVN) for duty with an Infantry battalion as a medical specialist, most likely the medical platoon of the battalion.  He was advanced to pay grade E-4 on 
1 January 1968.

Also on 1 January 1968, he was seriously injured as the result of a hand grenade explosion in the unit area (actually, the unit was apparently in a rest area).  He was medically evacuated to the 24th Evacuation Hospital in the RVN. 

On or about 9 January 1968, a major from the battalion headquarters began an investigation of the incident.  A statement from one soldier indicated that he had found a "dud" hand grenade in the unit area.  He tried to turn it in for disposal, but the turn-in point was not open, so he laid the grenade near the web gear of the applicant.  Later in the day, the applicant and another solider were discussing cameras in the billeting area.  The grenade was seen again near the applicant's web gear.

The applicant, in a statement taken by a military police investigator on 7 January 1968, and recorded on an unnumbered form but entitled Statement by Accused or Suspect Person (Army Regulation 195-10) stated that he did not want counsel and agreed to being questioned.  In the statement he admitted finding an "old rusty hand grenade" near his gear.  He picked it up and threw it 3 to 5 feet away and it exploded.  He and the other soldier he was with were wounded.  He stated that he had seen the grenade in the area for a couple of weeks.  The pin was removed and the handle was in the position to explode, but because the arming handle was bent, he did not think it would explode.  He also stated that it was a new United States Army type fragmentation grenade.  He further stated that he did not intentionally throw the grenade to wound himself or the other soldier.  

Another document with the LOD investigation was a memorandum to the battalion commander dated 24 March 1968, in which he states that every man in the battalion had been briefed to leave duds and other explosives found in the area alone unless the handling of them was necessary in the performance of their duties.  He could not ascertain when the applicant was briefed on this, but he was sure that he knew the rules.  Further, the applicant was a combat medic with a rifle company and would be authorized to use a hand grenade during tactical operations.  However, he was in the battalion rest area and had no reason or authority to handling or playing with a hand grenade. 

A copy of the completed LOD is not in the applicant's official military personnel file (OMPF), but the copy the applicant provided from his DVA records has a letter from the Adjutant General's Office, Department of the Army, dated 3 May 1968, which states that the LOD was found to be Not in the Line of Duty-Due to own Misconduct.  He was advised of his right to appeal.  While the applicant claims he appealed the decision, there is no copy available in his OMPF.
On or about 16 February 1968, the applicant was returned to the United States to the Letterman General Hospital, San Francisco, California.  He underwent further treatment and several convalescent leaves.  Apparently, he was late in returning from one of these leaves and he was administratively charged with one day absent without leave (AWOL) on 26 February 1968.  However, there is no recorded NJP action.

A Clinical Record summary prepared on or about 5 June 1968 outlines his medical injuries to include fragmentation wounds to both lower extremities, with no nerve or artery involvement; fragment wounds to the neck with perforation of the jugular vein, the left upper arm with no nerve or artery involvement, and the chest wall, also with no nerve or artery involvement; fragmentation wound to the right eye, with retained foreign body in the eye; perforation to the bladder and gastric areas, surgically repaired; both ear drums punctured; continued paralysis to the laryngeal nerve (voice box); fracture of a finger; and a traumatic cataract.  He was to be returned to duty with a medical profile of E-3 (eyes) profile and a temporary medical profile of L-3 (lower extremities).  The summary states that all the diagnoses were "line of duty-yes."

Medical records of the applicant are also not available, but it appears that he was found fit for duty.  Further, on 20 June 1968, he was reassigned from Letterman General Hospital to the Army Garrison at Fort Ord, California.  On 25 October 1968, he was further assigned to a medical unit at Fort Ord.  

On 2 December 1968, the applicant went AWOL from Fort Ord.  He returned to military control at Fort Ord on 7 April 1969.  On 25 April 1969, in consonance with his plea, he was found guilty of the AWOL offense.  He was sentenced to forfeit $50.00 pay per month for 2 months and to receive a written reprimand.  

He was returned to duty and served until he was separated from active duty at the completion of his active duty commitment with a general discharge, under honorable conditions, on 20 February 1970.  He was transferred to the Army Reserve Control Group (Reinforcement) to complete his service obligation.  He was credited with 2 years, 11 months and 28 days active service and he had 
168 days lost time due to AWOL.  His awards and decorations shown in item 
24 (Decorations) of the DD Form 214 include the Purple Heart, the Combat Infantryman Badge (sic), the National Defense Service Medal, the Vietnam Service Medal, the RVN Campaign Medal with 60 device, and the Marksman Badge (Rifle).  

Special Orders 28, Headquarters, 9th Infantry Division, 28 January l968 shows that the applicant was actually authorized the Combat Medical Badge vice the Combat Infantryman Badge that is shown on his DD Form 214.

Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This document shows the unit, to which the applicant was assigned, was cited for award of the Vietnam Gallantry Cross with Palm Unit Citation for the period 1 December 1966 to 30 June 1968 by Department of the Army General Order Number 31, dated 1969.

Department of the Army Pamphlet 672-3 also shows the applicant 's unit was cited for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation based on Department of the Army General Orders Number 59, dated 1969.

Army Regulation 600-8-22, in pertinent part, authorizes award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal.

Army Regulation 600-8-22, in pertinent part, that during the applicant's period of  service in the RVN from 24 November 1967 to 16 February 1968, that two campaign credits were authorized for soldiers serving in the RVN.  These included the Vietnam Counteroffensive Phase III and the Tet Counteroffensive. 

Army Regulation 600-10, then in effect, essentially provided that when a solider was injured under questionable conditions, that the circumstances would be investigated.  The unit commander would appoint a disinterested officer to investigate.  While most investigations resulted in a favorable finding of In Line of Duty, in certain cases wherein the individual was found to have carelessly caused an accident or injury or was due to his own misconduct, a finding of Not in the Line of Duty-Due to Own Misconduct would be made.  The individual had the right to appeal this decision to the Department of the Army, Office of the Adjutant General in 1968.   

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant, in this case, has failed to submit evidence that would satisfy this requirement.

2.  A review of the LOD investigation provided by the applicant from his DVA records indicates that he picked up a "dud" grenade in the unit area and carelessly threw it away.  Unfortunately, he threw it only a short distance "without thinking" and when it exploded, he and another soldier were seriously injured.  
3.  The statement form on which a military police investigator recorded the applicant's statement on 7 January 1968, which the applicant signed, clearly shows that the applicant was advised that he was a suspect in the incident.  He waived counsel.  Whether or not he was under sedation is unknown.  

4.  In this statement, the applicant clearly admitted that he had seen the hand grenade in the unit area for a couple of weeks.  Therefore, it was not "dud ordnance" recently found in the unit rest area.  He also admitted he knew the safety pin was not in the grenade and the arming lever was in a position to explode.  He carelessly threw it "away," but it exploded.  Therefore, the Board must conclude that it was through his own misconduct that the grenade was mishandled and thrown in such a manner to cause it to explode near him and the other soldier.

5.  The appointment of an investigating officer from within the battalion staff is considered appropriate.  Certainly, that officer could be considered an "uninterested investigating official."  He also clearly attested to the fact that all the soldiers in the battalion had been appropriately advised of the dangers of handling "dud" ordnance and other explosives found in the unit area.   

6.  The Board also notes that the applicant was notified of his right to appeal the finding in the memorandum from the Department of the Army dated 3 May 1968. Whether or not he appealed this is unclear.  Departmental records from that era are no longer kept in the current file area.  There may be some Departmental LOD records on file at the Federal Records Repository maintained by the National Archives at its Suitland, Maryland facility.  However, since the Board is not an investigative agency, the applicant would need to contact the National Archives to request a records search for any appeals he may have made.  

7.  In summary then, and in the absence of evidence to the contrary, the Board must presume administrative regularity in the determination made in the applicant's case in 1968.  

8.  Entitlement to DVA veteran benefits and adjustment of disability ratings rests with the DVA, not the Department of the Army.

9.  However, the Board notes that there is one administrative error in item 
24 on the applicant's DD Form 214, issued on 10 February 1970, wherein the Combat Infantryman Badge should read the Combat Medical Badge.  Further, the applicant is entitled to the award of the RVN Gallantry Cross with Palm Unit

Citation and the RVN Civil Actions Medal First Class Unit Citation, and two bronze service stars for wear on his Vietnam Service Medal.  The Army Review Boards Agency Support Division at St. Louis will be requested to make administrative corrections to the applicant's DD Form 214 to show the correct nomenclature for the Combat Medical Badge and to add the other unit awards/campaign credits cited above.   

10.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

NOTE:  The Army Review Boards Agency Support Division, St. Louis is requested to issue a DD Form 215 (Correction to DD Form 214) to show award of the Combat Medical Badge vice the Combat Infantryman Badge, the award of the RVN Gallantry Cross with Palm Unit Citation, the RVN Civil Actions Honor Medal First Class Unit Citation and two bronze service stars for wear on the Vietnam Campaign Medal.  

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__aao___  __bfh___  __teo ____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000040280	
SUFFIX		
RECON		
DATE BOARDED	20010130	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	134.00	
2.	145.00	
3.		
4.		
5.		
6.