ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 September 2019 DOCKET NUMBER: AR20190001570 APPLICANT REQUESTS: reconsideration of his earlier request for correction of his records to show the following: a. he was assigned to the 4th Infantry Division instead of the 25th Infantry Division, b. he held the rank and pay grade of private first class (PFC)/E-3 at the time of his separation with all back pay and allowances, c. reimbursement for lost pay due to disciplinary actions, d. removal of unjust adverse documents and records, e. verification of service-connected, combat injuries sustained in the Republic of Vietnam (RVN), including four incidents of head trauma/traumatic brain injury (TBI) and eardrum damage, f. award of the: * Purple Heart * Combat Infantryman Badge * Republic of Vietnam Campaign Medal with Device (1960) * Expert Marksmanship Qualification Badge with Pistol (.45 Caliber), Grenade, or Rocket Launcher Bars * All other authorized awards g. a review of his military records to show the number of his personal kills and his unit's kills in the RVN and the names of Soldiers with whom he served, including: * the specialist four who he alleges plotted against him * the second lieutenant (2LT) who warned him of an attack against him and deserved recognition h. issuance of a DD Form 256a (Honorable Discharge Certificate) to show his legal name, and i. as a new request, a replacement copy of his Leaders Preparation Certificate. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Self-authored letter, undated * Self-Authored statement, dated 26 November 2018 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in: * ABCMR Docket Number AC-91-06594, dated 8 April 1992 * ABCMR Docket Number AR20140010701, dated 12 February 2015 * ABCMR Docket Number AR20150004621, dated 29 October 2015 * ABCMR Docket Number AR20160011118, dated 12 September 2018 2. The ABCMR is not an investigative agency and the Board does not maintain files/records pertaining to unit personnel or wartime casualties. Moreover, such information is not authorized to be filed in the OMPF. Therefore, the applicant's request for information pertaining to the number of enemy Soldiers killed in action by him and/or his unit and the names of Soldiers with whom he served will not be addressed by the Board. 3. The ABCMR does not provide copies of military service records to veterans. The applicant is directed to the National Archives, Veterans' Service Records website, https://www.archives.gov/veterans, for information and guidance on obtaining copies of his military service records, including his request for a copy of his Leaders Preparation Course Certificate, or use a Standard Form 180 (Request Pertaining to Military Records). A Standard Form 180 will be included with this decisional document for the applicant's use. 4. The applicant states: a. It was suggested that he had 97 days of foreign service in Vietnam, but his DD Form 214 indicates 90 days. He served in Vietnam from 17 June 1972 to 18 September 1972. b. He never submitted a request for the names of those Soldiers who served with him. c. There was a specialist four (SP4) involved twice in accusing him toward punishment. d. He never indicated the 2LT warned him. He indicated the 2LT saved his life by hand signals. e. Someone else's discharge packet was delivered to him and he never received his discharge certificate. f. He was never assigned to the 14th Infantry Regiment. The 14th Infantry Regiment was only in Vietnam early in the war and not in 1972. g. The SP4 threatened him about going to the captain's office after accusing him of sleeping on guard duty for fear the captain would point the finger at him and his double journal entries. An E-6 overheard the SP4's threat and told the SP4 that all noncommissioned officers were journaling what he had been doing. h. The date and duty roster show the ammunition depot at Long Binh was hit by sappers (combatants) and he received shrapnel in one knee and both ear drums were damaged. He also had other noticeable mental difficulty. i. His injuries had to be verified by staff sergeant (SSG)/E-6s or above and a 2LT verified the damage to his ears. He discovered through the assistance of a technician from the National Archives using microfilm that his injuries were reported on the unit's morning reports. He was never seen at an infirmary neither he did receive medical treatment. He did not receive repairs to his eardrums until 1974 or 1975 after he left the Army. While stateside, he did not know enough to inquire about getting his ears checked. However, a major at the infirmary at Fort Jackson, SC, noticed his condition, but nothing was done. Doctors at the Department of Veterans Affairs (VA) Medical Center, Sioux Falls, SD, told him that his condition sounded like traumatic brain injury (TBI). j. He never indicated another Soldier pulled the trigger. A medic indicated to him that he could see a slight indentation to his skull that broke through the skin and lining of his skull. The medic tried to stitch him up, but the stitches ripped apart. k. Since he was still on his feet, gauge and bandage were applied to his injury and he was told to take time off from duty. Forensic tests indicated scaring as far back as a three-month period could be determine; however, the VA would not authorize the procedure. l. The dates of his first head trauma involving injury to his ear drums should be checked. He was accused twice of sleeping on guard duty and the SP4 was involved in both incidents. This same SP4 set him up with a war crime. The second time the SP4 accused him he was camouflaged and his accusations lead to approximately a couple hundred tons of sapper attack in their depot. m. He thought the Purple Heart would be automatically awarded, but no one forwarded the paperwork. The SSGs and above, including the 2LT documented his ear drum damage in personal journals and morning reports. n. His compound underwent ground attack by the enemy and the unit NCO's called them "Broken Arrows." It was the SP4s and below who actually fought them. o. The VA doctors noted severe and chronic anxiety disorder and post-traumatic stress disorder. He is not sure if the VA recorded these conditions. All of his records have been altered three times. p. He tried to dispute the supposed blackouts, but that is how physicians noted his condition. However, he did not say any such thing. He has had dizzy spells since he sustained his head trauma. The dates in his records indicate he was in Vietnam three years previously even though he never mentioned he was assigned in Vietnam at the time of his injury. q. He was originally diagnosed by a psychiatrist who was extremely upset. The VA at Fort Snelling could not find anything on x-ray and he argued with physician. The VA at Fort Snelling sent his honorable discharge to a guy with a different middle initial and that same guy received a dishonorable discharge. Initially, the VA started giving the guy with the dishonorable discharge his checks. r. He was never a part of the 25th Infantry Division. s. He is entitled to award of the Purple Heart, Combat Infantryman Badge, and Republic of Vietnam Campaign Medal with Device (1960) because he was wounded and there is proof on microfilm. He believes a mistake was made by a Congressional representative who connected him with entitlement to the Republic of Vietnam Gallantry Cross with Palm Unit Citation with no connection to the 4th Infantry Division. He was attached to the U.S. Army Vietnam in 1972. t. Although he was no longer fit for military duty in Vietnam, he did not leave Vietnam when he was told his wounds were his ticket home. He continued to serve until his honorable discharge rather than accepting a medical discharge, but not without difficulties. He could not hear and no one ever attempted to evaluate him. u. The special court-martial conviction indicated he was absent from his post. v. The ABCMR apparently must have overlooked the evidence because the Board claimed there was no evidence he was assigned or attached to the 4th Infantry Regiment and the claim is or was the 25th Infantry Division even though he does not believe the 25th Infantry Division was involved in 1972 in Long Binh or anywhere at that time. w. He never received advice from legal authority; there was no legal authority present on his behalf during the proceedings nor was there one witness present. He was later appointed representation who dismissed himself from the proceedings and later interrupted the proceedings only to inquire about the proceedings being over. x. The VA treated his dizziness as a form of seizures, which resulted in temporary losses of consciousness, falls, and multiple injuries. The VA altered his records a second time to indicate conditions other than dizziness. After he provided the VA proof of his head and body injuries, his record was changed to unverified for injuries. y. The schizoaffective and paranoid schizophrenia are misdiagnoses and verified by the VA, Sioux Falls, SD. A VA representative told him that she would note in his records that he had reached an age that he no longer needed medications for such conditions. He was put on disability for a misdiagnosis and this will have to remain in place so he can receive his disability payment. z. His name was legally changed to his real and genuine name which he did not know at the time of his service. His mother decided to give him the name of the man she married. He used no aliases nor nicknames. The legal documentation is on record and the record is now amended except the U.S. Government records. aa. His Army records are a mess and the failure to account for him has gone on since 1972. ab. He desires the ABCMR to search microfilm for his 90-day duration accounting for his wounds and ground combat, make a determination on the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and help him re-correct his records. ac. His earlier request was misinterpreted. Microfilm proves his claim and he questions what records the ABCMR considered since he was present for duty, with the exception of one time. 5. He enlisted in the Regular Army on 22 December 1971 in the rank/grade of private/E-1 (PV1). He signed his DD Form 4 (Enlistment Contract – Armed Forces of the United States) using the name "X____ X______ X______." 6. His military personnel documents show he served on active duty using the name "X____ X______ X______." 7. His DA Form 20 (Enlisted Qualification Record) shows in: a. item 22 (Military Occupational Specialties (MOSs) – he was awarded MOS 11B (Light Weapons Infantryman) on 19 May 1972, b. item 29 (Qualification in Arms) – he qualified as marksman with M-16 rifle on 26 October 1972; no entry indicating he qualified as Expert with any weapon, c. item 33 (Appointments and Reductions) – he was promoted/reduced as follows: * 17 March 1972, promoted to private/E-2 (PV2) * 19 May 1972, promoted to PFC/E-3 * 15 August 1972, reduced to PV2/E-2 * 22 September 1972, reduced to PV1/E-1 d. item 38 (Record of Assignments) – he served with the following units: * Company E, 14th Infantry Regiment, as a security guard from 17 June 1972 until 18 September 1972 * U.S. Army Correctional Holding Detachment, Vietnam, as a prisoner from 19 September 1972 to 23 September 1972 * U.S. Army Correctional Training Facility, Unit 6 (A Team), Fort Riley, KS, as confinement/trainee from 27 September 1972 to 26 October 1972 * U.S. Army Correctional Training Facility, 1st Unit, 1st Battalion, Fort Riley, KS, as confinement/trainee from 27 October 1972 to 7 November 1972 * U.S. Army Correctional Training Facility, 1st Unit, 1st Battalion, Fort Riley, KS, as a trainee from 8 November 1972 to on or about 22 November 1972 at which time he was placed in a casual status enroute to Fort Jackson, SC e. item 40 (Wounds) – no entry [blank], f. item 41 (Awards and Decorations) – award of the: * National Defense Service Medal * Vietnam Service Medal * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) g. item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date ETS (Expiration of Term of Service)) – 50 days, 19 September 1972 to 7 November 1972, confinement. 8. On 7 August 1972, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for falling asleep at his post in a sentinel tower in Vietnam on "5 August 1972." His punishment included reduction to PV2, 7 days forfeiture of pay, and 14 days extra duty. He elected not to appeal the punishment. 9. He served in Vietnam from 12 June 1972 to on or about 19 September 1972. 10. Headquarters, U.S. Army Installation, Long Binh, Vietnam, Special Court-Martial Order Number 40, date illegible, shows the applicant pled guilty and was found guilty of sleeping upon his post on or about 1 September 1972; he pled not guilty and was found guilty of sleeping upon his post on or about 6 September 1972. His punishment included reduction to PV1, forfeiture of $50 pay for 2 months, and confinement at hard labor for 2 months. His sentence was adjudged on 19 September 1972. On 22 September 1972, his sentenced was approved and ordered to be duly executed. 11. U.S. Army Correctional Training Facility Special Court-Martial Order Number 1160, dated 24 October 1972, shows the unexecuted portion of his approved sentence to forfeiture of $50 pay for 2 month was suspended until 20 December 1972, at which time, unless sooner vacated, the suspended portion of the sentence would be remitted with further action. 12. On 24 January 1973, he accepted NJP under the provisions of Article 15, UCMJ, for being absent from his place of duty on or about 17 January 1973 until 18 January 1973. His punishment included forfeiture of $30 pay for one month, 14 days restriction to Fort Jackson, SC, and 14 days of extra duty. 13. On 8 February 1974, he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group. His DD Form 214 shows he had 1 year, 11 months, and 27 days of total active service; he had 3 months and 7 days of foreign and/or sea service; and he had 50 days of time lost. His DD Form 214 also shows in: * items 6 (Grade, Rate or Rank) and 6b (Pay Grade) – he held the rank of PV1/E-1 at the time of separation * item 7 (Date of Rank) – "720922" * item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) – he was awarded or authorized the National Defense Service Medal and Vietnam Service Medal 14. A VA Medical Discharge Summary, dated 1976, shows the applicant complained of black-outs and reported a history of head trauma. He was referred to the epilepsy clinic for follow-up with a scheduled appointment for 13 April 1976. 15. On 8 April 1992 and in response to ABCMR Docket Number AC-91-06594, the ABCMR responded to the applicant's request for removal or transfer of records of his court-martial conviction in his official military personnel file. The ABCMR determined his case would not be considered because the ABCMR does not have the authority to dismiss or set aside a court-martial conviction and there is no provision for transfer of this information to the restricted fiche in a case where the conviction stands. His case was administratively closed. 16. His service record contains a court order, dated 11 March 1996, that shows his name was changed from "X____ X______ X______" to X____ X______ X______." His birth certificate issued on shows his name as "X____ X_____ X_____." 17. His record contains a National Personnel Records Center letter, dated 21 October 2013, that lists the applicant's authorized awards as: * National Defense Service Medal * Vietnam Service Medal with one bronze service star * Republic of Vietnam Campaign Medal with Device (1960) * Sharpshooter Marksmanship Qualification Badge with Automatic Rifle Bar 18. His VA Progress Note, dated 11 December 2013, shows his treatment for mental health issues. His mental health diagnoses were anxiety disorder with significant obsessive component, polysubstance dependence in remission, substance induced mood/mental disorder, and schizoaffective disorder versus paranoid schizophrenia per history. 19. On 12 February 2015 and in ABCMR Docket Number AR20140010701, the ABCMR granted the applicant partial relief by amending his DD Form 214 to show award of the Vietnam Service Medal with one bronze service star, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation. The ABCMR denied the portion of his request for award of the Purple Heart, Combat Infantryman Badge, and Expert Marksmanship Qualification Badge with Pistol Bar (.45 caliber), Grenade, and Rocket Launcher Bars due to a lack of evidence. 20. On 18 March 2015, he was issued a DD Form 215 (Correction to DD Form 214) to show his award of the following: * Vietnam Service Medal with one bronze service star * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Republic of Vietnam Gallantry Cross with Palm Unit Citation 21. He provided a self-authored statement, dated 26 November 2018 in which he stated: a. the Board did not thoroughly review the evidence from his previous case. His supportive documents and claims were not given proper attention, b. the Board determined he was absent from his post; however, he was on duty performing his duties during the period he was accused of being absent from his post and seen in downtown Saigon, c. the Board did not check the supportive dates on microfilm that verify the date of his wounds, and d. his evidence was reviewed by unintelligent people or civilians who were not capable of reviewing the material. 22. On 12 September 2018 and in ABCMR Docket Number AR20160011118, the ABCMR denied all the applicant's previous requests for reconsideration. 23. The applicant's name does not appear 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. 24. His records are void of orders showing he was awarded the Purple Heart, Combat Infantryman Badge, Expert Marksmanship Qualification Badges, or any other awards. 25. 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 Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any orders for award of the Purple Heart pertaining to the applicant. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the requested relief is not warranted. 2. The Board found no evidence showing the applicant was assigned to a subordinate unit of the 4th Infantry Division. At the time of his service in Vietnam, the 14th Infantry was a subordinate unit of the 25th Infantry Division. 3. The applicant was reduced to PV1/E-1 by sentence of a court-martial, and he was not advanced above this grade prior to his release from active duty. The Board agreed the record shows no evidence of error or injustice regarding his rank/grade or any pay and allowances he may have lost as a result of his reduction in grade and other disciplinary actions. 4. The Board found no evidence of error or injustice in the records of court-martial and nonjudicial punishment filed in his records. In the absence of evidence or error or injustice, there is no basis for removing any of these records. 5. The available records contain no evidence of combat-related injuries that would be a basis for awarding him the Purple Heart. 6. The applicant's served in Vietnam less than 6 months and he was removed from duty in Vietnam for disciplinary reasons. His brief period of service in Vietnam did not meet the criteria for the Republic of Vietnam Campaign Medal with Device (1960). 7. During his brief period of service in Vietnam, the applicant was an infantryman serving in an infantry unit performing duty as a security guard. Infantry Soldiers performing security guard duties were precluded from being awarded the Combat Infantryman Badge. 8. The record is void of documentation showing the applicant qualified as an expert marksman with the .45 caliber pistol, grenades, or rocket launcher. In the absence of a record of qualification scores, there is no basis for correction of the record to show additional marksmanship badges. 9. A review of the record found no evidence of eligibility for additional awards. 10. The applicant changed his name many years after he was discharged. In this case, the post-service name change does not present a basis for issuing a new Honorable Discharge Certificate. 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. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. a. The Purple Heart is awarded for a wound sustained while 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 medical personnel, and the medical treatment must have been made a matter of official record. (1) a wound is defined as an injury to any part of the body from an outside force or agent. A physical lesion is not required. However, the wound for which the award is made must have required treatment, not merely examination, by a medical officer. Additionally, treatment of the wound will be documented in the Service member’s medical and/or health record. Award of the Purple Heart may be made for wounds treated by a medical professional other than a medical officer provided a medical officer includes a statement in the Service member’s medical record that the extent of the wounds was such that they would have required treatment by a medical officer if one had been available to treat them. (2) When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury. The fact that the proposed recipient was participating in direct or indirect combat operations is a prerequisite, but is not sole justification for award. b. There are basically three requirements for award of the Combat Infantryman Badge. The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat. Additionally, Appendix V of U.S. Army Vietnam (USARV) Regulation 672-1 states that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11D, 11F, 11G, or 11H. c. The marksmanship qualification badge is awarded to indicate the degree – Expert, Sharpshooter, and Marksman – in which an individual has qualified in a prescribed record course. An appropriate bar is furnished to denote each weapon with which the individual has qualified. d. The Republic of Vietnam Campaign Medal with Device (1960) was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973. Qualifying service included assignment in Vietnam for 6 months or more. Also eligible for this award are individuals who qualified for award of the Vietnam Service Medal or the Armed Forces Expeditionary Medal and served for less than 6 months of service, but: * were wounded as a result of hostile action * were captured by hostile forces but later escaped or were rescued or released * were killed in action or otherwise in line of duty e. Department of the Army General Orders Number 8, dated 19 March 1974, confirmed award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Military Assistance Command, and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters, U.S. Army Vietnam, and its subordinate units during the period 20 July 1965 to 28 March 1973. 2. U.S. Army Vietnam Regulation 672-1 (Awards), in effect at the time, excluded Soldiers (including those holding infantry MOSs) who were serving as facility security guards from award of the Combat Infantryman Badge. 3. Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214. It stated, "The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear- cut record of active Army service at the time of release from active duty, retirement, or discharge." Instructions stated for: a. item 1 (Last Name – First Name – Middle Name), to enter the last name, first name, and full middle name or names, if any. b. items 6a and b, to enter grade and pay grade at time of separation. c. item 7 (Date of Rank), to enter from the DA Form 20. d. item 21 (Lost Time), to enter from the DA Form 20, the total number of days lost. e. item 26, to enter from the DA Form 20, all decorations, service medals, campaign credits, and badges awarded or authorized, omitting authorities cited therein. 4. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files. It ensures that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files. It also ensures that the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. 5. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. 6. Title 31, U.S. Code, section 3702, is the 6-year barring statute for payment of claims by the Government. In essence, if an individual brings a claim against the Government for monetary relief, the barring statute provides the Government is only obligated to pay the individual 6 years from the date of the approval of the claim. 7. U.S. Army Center of Military History, Lineage and Honors, pertaining to the 1st Battalion, 14th Infantry Regiment (Golden Dragons), in pertinent part, shows: * on 1 August 1967, the regiment was relieved from assignment to the 25th Infantry Division and assigned to the 4th Infantry Division * on 15 December 1970, the regiment was relieved from assignment to the 4th Infantry Division and assigned to the 25th Infantry Division 8. Army Regulation 600-8-104 (Army Military Human Resource Record Management) provides policies, operating tasks, and steps governing the Official Military Personnel File (OMPF). Depending on the purpose, documents will be filed in the OMPF in the performance, service, or restricted section. Once placed in the OMPF, the document becomes a permanent part of that file. Once properly filed in the OMPF, the document will not be removed from the record unless directed by, in pertinent part, one of the following: * the Official Records Custodian for administrative purposes (this includes, but is not limited to deleting or moving mistakenly filed documents from the performance or service folder to the restricted folder and vice versa) * ABCMR to correct an error or remove an injustice only after all means of administrative appeal have been exhausted 9. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR decides cases on the evidence of record. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190001570 11 1