ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 17 May 2019 DOCKET NUMBER: AR20180016812 APPLICANT REQUESTS: * award of the Purple Heart * removal of the notation showing two courts-martial convictions – he only has one * correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his disability percentage * a personal appearance hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * three DD Forms 214 for the periods ending 24 November 1960, 16 December 1963, and 29 May 1969 FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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. 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 AC98-06922 on 6 May 1998. 3. The applicant's reconstructed DA Form 20 (Enlisted Qualification Record) shows: a. Item 31 (Foreign Service) he received overseas tour credit for service in Vietnam from 1 March 1966 through 27 May 1966 and Japan from 28 May 1966 through 25 August 1966. b. Item 38 (Record of Assignments) of his DA Form 20 shows he was assigned to Headquarters and Headquarters Company, 1st Battalion (Airborne), 327th Infantry Regiment, in Vietnam from 1 January 1966 through 31 April 1966; however, this entry is lined through. c. Item 40 (Wounds) of his DA Form 20 shows no entries. 4. His records contain a memorandum from his former company commander in Vietnam to the Commander, Brooks Army Medical Center dated 30 November 1966, wherein his former commander stated: * the applicant was assigned to Headquarters and Headquarters Company, 1st Battalion (Airborne), 327th Infantry Regiment, 1st Brigade, 101st Airborne Division, in the Republic of South Vietnam, which he commanded from March through May of 1966 * the applicant was originally assigned to the support platoon * the applicant later complained of a wrist injury and said he was unable to do any extreme physical labor * the applicant was then used as a driver and assistant to other personnel in the orderly room/supply room * the applicant was then sent to the 8th Field Hospital for examination of his wrist * in late May the applicant was scheduled for evacuation to the United States * the applicant was never wounded as a result of hostile action nor was he ever promoted to sergeant/E-5 while serving as a member of his command 5. Special Court-Martial Order Number 1142, Headquarters, Fort McPherson Troop Command, dated 1 September 1967, shows the applicant was convicted by a special court-martial for being absent from his unit from on or about 25 July 1967 until on or about 23 August 1967 (30 days). His punishment included reduction in rank/grade to private first class/E-3. 6. Headquarters, Department of the Army, General Orders Number 17, dated 23 April 1968, awarded the 1st Battalion, 327th Infantry Regiment, the Meritorious Unit Commendation for exceptionally meritorious service during the period 29 July 1965 through 1 October 1966. 7. Special Court-Martial Order Number 548, Headquarters, Fort McPherson Troop Command, dated 24 April 1968, shows the applicant was convicted by a special court- martial for being absent from his unit from on or about 6 March 1968 until on or about 29 March 1968 (24 days). His punishment included reduction in rank/grade to private two/E-2. 8. His DA Form 20B (Insert Sheet to DA Form 20 – Record of Court-Martial Conviction) lists these two special courts-martial convictions. 9. His records contain a DA Form 8-274 (Medical Condition – Physical Profile Record) dated 29 April 1968, showing he has the following defects: right hand ulnar nerve palsy and right wrist traumatic arthritis. He was medically qualified for limited duty and assigned a permanent physical profile rating of "3" in the upper extremities factor effective 2 April 1968. 10. Headquarters, Department of the Army, General Orders Number 1, dated 8 January 1969, awarded the 1st Battalion, 327th Infantry Regiment, the Valorous Unit Award for extraordinary heroism during period 17 January 1966 through 25 March 1966. 11. His records contain a DD Form 458 (Charge Sheet), dated 9 April 1969, showing court-martial charges were preferred against him for being absent from his unit without proper authority from on or about 6 June 1968 until on or about 21 March 1969 (289 days). His records also contain an Extract of Military Records of Previous Convictions, dated 9 April 1969, showing two previous courts-martial convictions. 12. On 9 May 1969, he requested discharge for the good of the service in lieu of trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge. He stated he had not been subjected to coercion with respect to his request for discharge and he had been advised of the implications are attached to it. He understood that if this request for discharge were accepted, he might be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He understood that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veteran's Administration (now known as the Department of Veterans Affairs), and he might be deprived of his rights and benefits as a veteran under both Federal and State laws. He also understood that he expected to encounter substantial prejudice in civilian life by reason of an undesirable discharge. 13. He submitted a statement with his request for discharge for the good of the service in which he stated his problem began on 25 August 1966 when he returned from Vietnam where he received wounds in his right arm. 14. On 20 May 1969, the separation authority approved his request for discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, and directed issuance of a General Discharge Certificate. 15. He was discharged for the good of the service in lieu of trial by court-martial on 29 May 1969 under the provisions of Army Regulation 635-200, chapter 10. He completed 7 years, 9 months, and 1 day of total active service. His service was characterized as under honorable conditions (general). His DD Form 214 for the period ending 29 May 1969 shows in:? a. item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized), he was awarded or authorized the Vietnam Service Medal and National Defense Service Medal; and b. item 30 (Remarks), he accrued 342 days of lost time due to being absent without leave from 25 July 1967 through 23 August 1967, from 6 March 1968 through 29 March 1968, and from 6 June 1968 through 29 March 1969. 16. His name is not shown on the Department of the Army Office of the Adjutant General Casualty Division Casualty Reference Name Listing for the period 1 January 1961 through 30 June 1973, a battle and non-battle listing of Soldiers who were killed, wounded, sick, captured, or missing during their service in Vietnam. 17. 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 Awards and Decorations Branch, failed to reveal orders awarding him the Purple Heart. 18. On 14 June 1977, the Army Discharge Review Board considered his service characterization under the Special Discharge Review Program and determined he did not meet the program criteria and denied relief. a. The board determined he met the primary criteria for review and noted he was wounded in action. He satisfactorily completed an assignment in Southeast Asia. He received an honorable discharge from a previous tour of military service. He had a record of satisfactory active military service for 24 months prior to discharge. b. The board determined he met the secondary criteria for review based on his age, general aptitude, length of service, and education level at the time of his discharge. The board noted possible personal problems may have contributed to the acts which led to his discharge. c. The board determined his service was properly characterized at the time of his discharge. He had two special courts-martial convictions, one nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice, and 11 months of lost time. 19. On 6 May 1998, the ABCMR denied his request for award of the Purple Heart. The Board noted there was no medical evidence that confirmed he was wounded as a result of hostile action in Vietnam. The Board determined he had not presented and his records did not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board determined that there was insufficient evidence to grant relief. 1. Regarding that portion of the applicant’s claim that pertains to the Purple Heart medal, the Board found no documentation within the record showing the applicant was treated by military medical personnel and do not indicate any wounds or scars that could have derived from a combat injury. The record indicates that the applicant’s wrist injury was not due to combat and his DA Form 20 does not list any wounds. Therefore the applicant did not meet the regulatory requirements for award of the Purple Heart. 2. Regarding that portion of the applicant’s claim that he only has one courts martial, the applicant’s official record shows two courts martials. 3. Regarding that portion of the applicant’s claim that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) is in error because it fails to show his disability percentage, there is no evidence in the official record to indicate that the applicant was discharged due to disability. 4. Regarding that portion of the applicant’s claim that pertains to a personal appearance hearing before the Board, the applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. ? 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. ADMINISTRATIVE NOTE(S): not applicable. ? REFERENCES: 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 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. 2. Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained in action against an enemy or as a result of hostile action. Substantiating evidence must be provided to verify 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. 3. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, 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 (Wounds) of the DA Form 20. This regulation further stated the date the wound or injury occurred would also be entered in item 40. 4. Army Regulation 635-5 (Separation Documents), in effect at the time, provided the separation document that will be furnished each individual who is separated from the Army, including active duty for training personnel, and establishes standardized procedures for the preparation and distribution of these documents. There was no provision for listing disability ratings on a DD Form 214. 5. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) set forth the basic authority for the separation of enlisted personnel. Chapter 10 provided that a member who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted any time after charges had been preferred and must have included the individual's admission of guilt. An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. If warranted, however, the discharge authority could direct an honorable or general discharge. 6. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180016812 2 1