RECORD OF PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            09 MARCH 2004                  
	DOCKET NUMBER:   AR2003092451

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

	Mr. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Shirley L. Powell		Member	
	Ms. Barbara J. Ellis		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his records be corrected to show that he was retired by reason of physical disability and that he be awarded of the Purple Heart and Combat Infantryman Badge.  He also requests award of the Silver Star and Bronze Star Medal.

2.  The applicant states, in effect, that his medical conditions are service connected and that he served honorably throughout his term of military service.  He notes that his records should show that he was “legally blind” when he was inducted into the Army, that he was wounded in combat, and injured his shoulders while serving in Germany, and that he suffers from a “recurring type” of malaria, which he contracted in Vietnam.

3.  The applicant also states that while at Fort Huachuca, Arizona, in October 1969, he disarmed an unattended ground sensor containing explosives and was told that he would receive the Bronze Star Medal and the Silver Star for his actions.

4.  The applicant provides copies of service medical records and documents associated with his ongoing attempt to secure increased disability benefits from the Department of Veterans Affairs.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on 
14 August 1970.  The application submitted in this case is dated 30 June 2003.  

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant requested correction of his records to show award of the Silver Star and Bronze Star Medal.  There are no orders or other evidence authorizing award of either decoration.  In the absence of a proper award authority for these decorations, the applicant may request award of the Silver Star and Bronze Star Medal under the provisions of Section 1130 of Title 10, United States Code.  The applicant has been notified by separate correspondence of the procedures for applying for these decorations under Section 1130 and, as a result, will not be discussed further in the Record of Proceedings.

4.  Records available to the Board indicate that the applicant was initially inducted and entered active duty on 17 August 1967.  His entrance physical noted his vision defect and he was issued a permanent “2” profile for his eyes.  He was, however, found medically qualified for military service.

5.  On 23 August 1967, while undergoing basic combat training, he was discharged for the purpose of enlisting in the Regular Army.  He executed his Regular Army enlisted action on 24 August 1967.

6.  He successfully completed training and on 16 February 1968 was awarded a primary specialty of 31M (Radio Relay & Carrier Attendant).

7.  The applicant arrived in Vietnam in March 1968 and was assigned in his primary specialty with the 24th Signal Battalion.  His service medical records indicate that on 3 April 1968 he was treated for a laceration to his right elbow.  There is no indication in his medical records that the laceration was the result of hostile action.  Item 40 (wounds) on his Department of the Army Form 20 (Enlisted Qualification Record) is also blank.

8.  The applicant departed Vietnam in March 1969 and was briefly assigned to Fort Huachuca.  He was promoted to pay grade E-5 in August 1969.  In December 1969 the applicant was reassigned to Germany.  He returned to the United States in August 1970 and on 14 August 1970 was released from active duty with an honorable characterization of service under a program which permitted the early separation of Soldiers returning from overseas.

9.  As part of the applicant’s separation physical examination, he reported that his right elbow and back bothered him, that he had some pains in his chest, and stomach trouble.  He indicated that he was treated at a civilian hospital in March 1969 for malaria.  The evaluating physician noted the applicant’s complaints but found him medically qualified for separation.  

10.  Documents provided by the applicant indicate that he has had an ongoing struggle with the Department of Veterans Affairs to obtain increased disability benefits.

11.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for wounds sustained 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 a medical officer, and the medical treatment must have been made a matter of official record.

12.  There are basically three requirements for award of the Combat Infantryman Badge.  The Soldier must be an infantryman (11 series specialty), assigned to an infantry unit during such time as the unit is engaged in active ground combat, and must have actively participated in such ground combat.

13.  Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.  Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered evidence of physical fitness.

14.  Title 38, United States Code, sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish error or injustice in the basis for separation from the Army.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  

DISCUSSION AND CONCLUSIONS:

1.  While the applicant’s service medical records do note that he was treated for a laceration to his right elbow while in Vietnam, there is no evidence the laceration was the result of hostile action.  In the absence of such evidence, there is no basis for an award of the Purple Heart.

2.  The applicant did not meet the basic qualification requirements for award of the Combat Infantryman Badge.

3.  Although the applicant may have several service-connected disabilities, none of those conditions were such that they impacted on his ability to perform his military duties while in the Army.  The evidence of record indicates he did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or
separation.

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

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 14 August 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
13 August 1973.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__SAC __  __SLP __  __BJE __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.

		___Samuel A. Crumpler_____
		        CHAIRPERSON

INDEX

CASE ID	AR2003092451	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040309	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	107.00	
2.	108.00	
3.		
4.		
5.		
6.