ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  16 July 2019

	DOCKET NUMBER:  AR20160015755


APPLICANT REQUESTS: the addition of an omitted injury into his records.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self-Authored Statement
* Photo Excerpts of a Book “Sappers in the Wire
* Article Referencing Fire Support Base (FSB) Maryann
* South Vietnam on Trial Article
* Hospital Receipt
* Letter Response to Case Management Division (CMD)
* Army Commendation Medal (ARCOM)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states, he is requesting review of some information regarding an injury he sustained that was initially omitted from a report about the attack on FSB Mary Ann.  He then in explicit details explain the attack and his actions during the attack.  He had pneumonia and went to the doctor and found he had a foreign particle in his lung that apparently was in place for a long time.  He believes this particle may have been from his time in combat.  He currently has a claim for post-traumatic stress disorder (PTSD), and he is requesting the VA make a determination on his burn mark area, which will then support his claim to have this omitted injury added to his files.

3.  The applicant provides:

	a.  Photo Excerpts of a Book “Sappers in the Wire, dated 16 July 2016.

	b.  Article Referencing FSB Maryann, dated 1994.
	c.  South Vietnam on Trial Article, dated 12 April 1971.

	d.  Hospital Receipt, dated 4 April 2016, which shows the applicant was charged $415.00 for a CT Scan.

	e.  Letter Response to CMD, dated 3 July 2018, which states the events of the attack on FSB Maryann.

	f.  ARCOM with “V” device, dated 11 April 1971, which states the applicant displayed heroism in connection with military operations against a hostile force in the Republic of Vietnam.

4.  A review of his service records shows:

	a.  He was inducted on 28 October 1969 into the Regular Army (RA).

	b.  His DA Form 20 (Enlisted Qualification Record) shows that he served in Vietnam from 24 June 1970 to 27 May 1971 as indicated on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  Item 40 (Wounds), of the DA Form 20 does not list any wounds received during deployment.

	c.  His DD Form 214 reflects that he was released from active duty on 28 May 1971, and transferred to the United States Army Reserves (USAR), under the provisions of Army Regulation (AR) 635-200, Chapter 5, Section VII (Overseas Returnee), with a honorable characterization of service.  He was authorized or awarded:

* National Defense Service Medal
* Vietnam Service Medal
* Combat Infantryman Badge
* Overseas Service Ribbon (2nd Award)
* Vietnam Campaign Medal (1960)
* Sharpshooter Marksman Qualification Badge with Rifle Bar (M14)
* Marksman Marksmanship Qualification Badge with Rifle Bar (M16)

5.  On 29 April 2019, the Army Review Boards Agency medical advisor/psychologist reviewed the applicant's case and rendered an advisory opinion and opined:

	a.  Based on the available medical record, the applicant met retention standards in accordance with AR 40-501 (Standards of Fitness).

	b.  There is insufficient information in the medical record to support an injury to the left upper back resulting in a burn and possible foreign body.  However, it is certainly possible based on the applicant’s report and supporting documentation about the attack.
   c.  Therefore, based on the information currently available, it is the opinion of the Agency Medical Advisor that a referral of the applicant’s record to IDES for consideration of military medical retirement is not indicated at this time.

6.  On 1 May 2019, the applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal.  He did not respond.

7.  In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency.  He did not request a correction to his military record, but to add medical conditions to his medical record.  As the ABCMR, the Board may determine whether there is sufficient evidence to add his self-authored statement to his medical record.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was not warranted.  Based upon the medical advisory finding insufficient information in the medical record to support an injury to the left upper back resulting in a burn and possible foreign body and the applicant failing to provide a rebuttal to that finding, the Board concluded that there was insufficient evidence to support adding an injury to the applicant’s military records.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	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.
	 
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.


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.
2.  Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	b. Paragraph 5-14, states Commanders are authorized to order separation for convenience of the Government of enlisted personnel returned to the United States, a possession of the United States, or area of residence in which enlisted, inducted, or ordered to active duty, after completing, or having credit for completing, the normal oversea tour in the appropriate area.

3.  AR 40-501 (Medical Services – Standards of Medical Fitness) governs regulation governs Medical fitness standards for enlistment, induction, and appointment, including officer procurement programs, Medical fitness standards for retention and separation, including retirement, Medical fitness standards for diving, Special Forces, Airborne, Ranger, free fall parachute training and duty, and certain enlisted military occupational specialties (MOSs) and officer assignments.  It also governs Medical standards and policies for aviation, Physical profiles, and Medical examinations.

4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

ABCMR Record of Proceedings (cont)	 AR20160015755


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