IN THE CASE OF: BOARD DATE: 10 January 2023 DOCKET NUMBER: AR20220003397 APPLICANT REQUESTS: * reconsideration of his previous request for correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to remove the lost time * as new issues, he requests correction of his DD Form 214 to show his rank/grade as specialist four (SP4)/E-4 * as a second new issue, he requests to be awarded a second award of the Purple Heart APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 * Personal Statement 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 Docket Number, on 14 April 1982. 2. The applicant states he made up the time loss, which changed his discharge date from 27 June 1970 to 21 August 1970. He was also promoted to the grade of E-4, while station at Fort Hood, TX. Additionally, he was wounded four times, while in Vietnam from 12-67 to 12-68. a. He went in the Military on June 26th, 1967, basic training at Fort Bragg, NC. He took his advanced individual training at Fort Knox, KY (Armor School) Armored Personnel Carriers (113's) and 114's. He was assigned to the 11th Armored Calvary Regiment, second squadron on 8 December 1967. He was assigned to E troop,2nd Squardron,2nd platoon. The 113's were equipped with a 50-caliber and gun shield, and two M-60 machine mounted in the left and right rear of the vehicle. He was assigned as the driver and then a gunner on the vehicle. Dates wounded: (1) On 28 March 1968 he was involved in a mine explosion. He suffered an ankle injury, his hearing was also affected from the concussion. He was medivac to a field hospital. (2) On 9 May 1968, the armored vehicle he was riding on ran over a command detonated mine. His hearing was affected. He was medivac to a field hospital. (3) 22 May 1968, his vehicle was fired at with a rocket propelled grenade (B-40 rocket) (RPG). He suffered flash burns and was medivac to a field hospital. (4) 29 May 1968, his platoon was involved in a fire fight. One of their vehicles was hit by an RPG. He received shrapnel to his left arm and left thigh and hearing was affected. who was on the 2nd vehicle and was hit by shrapnel through the neck. He died on the medivac with him. He did receive a Purple Heart from this event. (5) 26 June 1968, he was hit by shrapnel in the face and back of the head. He was told it came from friendly fire. The combat medivac was not sure if it came from friendly fire. He was medivac to a field hospital. To the best of his knowledge these are the events that he was wounded in. (combat medic) kept a diary of the events. He lives in Oklahoma and they have been in constant contact over the years. He is diagnosed 100% for PTSD , hearing loss prostate cancer from agent orange. He has tried getting records from the national personnel records center with no success. b. He was assigned to Headquarters and Headquarters Company, 1st Battalion, 66th Armor, 2nd Armored Division (Hell on wheels), Fort Hood, TX from January 1969 to 25 August 1970, while stationed at Fort Hood, he was promoted to the grade of E-4. He never received any orders. This took place in the orderly with the first sergeant, company clerk, who recorded this event on the morning report. He does not remember the date. 3. Review of the applicant’s service records shows: a. He enlisted in the Regular Army on 27 June 1967 and held military occupational specialty 11D, Armor Reconnaissance Specialist. b. He served in Vietnam from 8 December 1967 to 7 December 1968. He was assigned to 2nd Squadron, 11th Armored Cavalry Regiment. He was advanced to private first class (PFC)/E-3 on 25 December 1967. c. On 1 August 1968, Headquarters, 2nd Squadron, 11th Armored Cavalry Regiment published Special Orders Number 178 reducing him to private/E-2 for misconduct effective 1 August 1968. d. On 26 September 1968, E Troop, 2nd Squadron, 11 Armored Cavalry Regiment published Unit Orders 52 advancing him back to private first class/E-3. e. After leaving Vietnam, he was assigned to Headquarters and Headquarters Company, 1st Battalion, 66th Armor, Fort Hood, TX. f. On 1 June 1969, he was reported absent without leave (AWOL) by his Fort Hood unit. However, he returned to military control on 4 June 1969. g. On 7 June 1969, he accepted nonjudicial punishment under Article 15 for being AWOL from 1 to 4 June 1969. h. On 23 October 1969, at Fort Hood, TX, he was convicted by a special court- martial of one specification of being absent without leave (AWOL) from 21 July 1969 to 29 August 1969. The court sentenced him to confinement at hard labor for 2 months, hard labor without confinement for 45 days, and reduction to private/E-1. i. On 9 December 1969, he was reported absent without leave (AWOL) by his Fort Hood unit. However, he returned to military control on 22 December 1969. j. On 7 January 1970, he accepted nonjudicial punishment under Article 15 for being AWOL from 9 to 22 December 1969. k. On 17 August 1970, Headquarters, III Corps, Fort Hood, published Special Orders Number 195 ordering his separation from active duty on 21 August 1970. The separation orders listed his rank as PFC. l. He was honorably released from active duty on 21 August 1970. His DD Form 214 shows he completed 2 years, 11 months, and 29 days of active service, and in: * Blocks 5a (Grade, Rate or Rank) and 4b (Pay Grade) PFC/E-3 * Block 6 (Date of Rank) 26 September 1968 * Block 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized): * National Defense Service Medal * Vietnam Service Medal with one silver service star * Republic of Vietnam Campaign Medal * Combat Infantryman Badge * Purple Heart * Marksman Marksmanship Badge with Rifle Bar * Block 26a (Non-Pay Periods, Time Lost): 1 to 3 June 1969, 21 July to 28 August 1969, 9 to 21 December 1969, and 23 to 24 December 1969 m. On 24 June 1982, he was issued a DD Form 215 (Correction to DD Form 214) that corrected his DD Form 214 as follows: * adjusted his net service and total active service from 2 years, 11 months, and 29 days to 3 years and 1 day * added the entry in 26a (Non-Pay Periods Time Lost) and Remarks to show 54 days (1 to 3 June 1969, 21 July to 28 August 1969, and 9 to 21 December 1969) 4. On 14 April 1982, the Board considered his issue of his lost time but denied his request to remove the lost time. The Board determined the applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable material error or injustice to warrant a formal hearing. 5. In the absence of order awarding a member the Purple Heart, other sources are considered to establish a member's eligibility for this award. Nothing in several typical sources that shows the applicant in this case was injured or wounded as a result of hostile action: a. There are no contemporaneous medical records exist to support an injury (as a result of enemy action) or treatment for such injury. b. His DA Form 20 (Enlisted Qualification Record) contains no entries in item 40 (Wounds). For those wounded as a result of hostile action, 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 of the DA Form 20. c. His personnel records do not contain an official Army message or a Western Union telegram notifying his next of kin of an injury or wound sustained in action. This was the proper notification procedure for injuries at the time. d. His name shown once on the Vietnam casualty listing as having been wounded as a result of hostile action on 28 May 1968 (code 24, Hostile Wounded in Action, Not Serious Not Hospitalized). This is a listing of Vietnam era casualties commonly used to verify entitlement to award of the Purple Heart. No other entries pertaining to the applicant are listed. e. 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, failed to reveal any orders for the Purple Heart pertaining to the applicant. 6. The applicant’s records do not contain, and he does not provide evidence of promotion higher than PFC/E-3. 7. By regulation, each award of the Purple Heart requires submission of substantiating evidence to verify: the injury/wound was the result of hostile action; the injury/wound must have required treatment by personnel; and the medical treatment must have been made a matter of official record 8. By regulation (AR 635-5), the Army preserves a record (even after time is made up) to explain which service between date of entry on active duty (block 12a) and separation date (block 12b) is creditable service. Time lost after ETS is non–chargeable time under 10 USC 972, but it must also be reported to ensure it is not counted in computation of total creditable service for benefits. For enlisted Soldiers, show inclusive periods of time lost to be made good under 10 USC 972, and periods of non– chargeable time after ETS. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. a. The Board noted that by regulation, each award of the Purple Heart requires submission of substantiating evidence to verify: the injury/wound was the result of hostile action; the injury/wound must have required treatment by personnel; and the medical treatment must have been made a matter of official record. The evidence shows the applicant was wounded once as a result of hostile action on 28 May 1968 and received the Purple Heart for that injury. There is no documentary evidence of a second injury as a result of hostile action, or any contemporaneous medical records exist to support an injury (as a result of enemy action) or treatment for such injury. b. The Board also noted that the applicant’s records do not contain, and he does not provide evidence of promotion higher than PFC/E-3. This is the rank/grade held by him at the time of separation. c. The Board further noted that Army preserves a record (even after time is made up) to explain which service between date of entry on active duty and separation date is creditable service. Time lost after ETS is non–chargeable time under 10 USC 972, but it must also be reported to ensure it is not counted in computation of total creditable service for benefits. For enlisted Soldiers, the regulation requires an entry of inclusive periods of time lost to be made good under 10 USC 972, and periods of non– chargeable time after ETS. 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: 1. As for the issue being reconsidered (lost time), 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 to amend the decision of the ABCMR set forth in Dockets Number, on 14 April 1982. 2. As for the new issues (grade and additional Purple Heart), 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, 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 the 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 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214. It states: * items 4a and 4b, enter the active duty rank and pay grade at time of the Soldier's separation; the rank is taken from the Soldier’s promotion and reduction orders * item 12a, enter the beginning date of the continuous period of active duty for issuance of this DD Form 214, for which a DD Form 214 was not previously issued * item 12b, this is the Soldier’s transition date; this date may not be the contractual date if Soldier is separated early, voluntarily extends, or is extended for make-up of lost time, or retained on active duty for the convenience of the Government. * item 12c, the amount of service this period, computed by subtracting item 12a from 12b; loss time under 10 USC 972 and non-creditable time after separation date, are deducted; such time will be identified in item 18 * item 12h, from the most recent promotion order or reduction instrument, enter the effective date of promotion to the current pay grade * item 18, enter mandatory entries and/or entries too long for their respective blocks; for a Soldier who has excess leave status, enter "Excess Leave (creditable for All Purposes Except Pay and Allowances) and specify days and period of time 3. Army Regulation 635-5 also requires a mandatory entry for lost time during the period covered by the DD Form 214 in item 29. Time lost is verified and must be subtracted from Net Active Service This Period (block 12c) if the lost time was not "made good." If the ETS (expiration term of service date) was adjusted as a result of lost time and the Soldier served until ETS, the lost time was "made good." Lost time under 10 USC 972 is not creditable service for pay, retirement, or veteran’s benefits. However, the Army preserves a record (even after time is made up) to explain which service between date of entry on active duty (block 12a) and separation date (block 12b) is creditable service. Time lost after ETS is non–chargeable time under 10 USC 972, but it must also be reported to ensure it is not counted in computation of total creditable service for benefits. For enlisted Soldiers, show inclusive periods of time lost to be made good under 10 USC 972, and periods of non–chargeable time after ETS. 4. 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 in the name of the President of the United States to any member of an Armed Force of the United States under the jurisdiction of the Secretary of the Army, who, after 5 April 1917, has been wounded, killed, or who has died or may hereafter die of wounds received, under any of the following circumstances: * In any action against an enemy of the United States * In any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged * While serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party * As the result of an act of any such enemy or opposing Armed Forces * As the result of an act of any hostile foreign force * After 7 December 1941, pursuant to Title 10, United States Code, section 1129, as a result of friendly fire provided the member was killed or wounded in action by friendly weapon fire while directly engaged in armed conflict, other than the result of an act of an enemy of the United States, unless (in the case of a wound) the wound is the result of the willful misconduct of member * On or after 7 December 1941, to a member who is killed or dies while in captivity as a Prisoner of War under circumstances establishing eligibility for the Prisoner of War Medal, unless compelling evidence is presented that shows the member’s death was not the result of enemy action b. To qualify for award of the Purple Heart the wound must have been of such severity that it required treatment, not merely examination, by a medical officer. 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. * Treatment of the wound will be documented in the member’s medical and/or health record * Award may be made for a wound treated by a medical professional other than a medical officer provided a medical officer includes a statement in the member’s medical record that the severity of the wound was such that it would have required treatment by a medical officer if one had been available to provide treatment * A medical professional is defined as a civilian physician or a physician extender. Physician extenders include nurse practitioners, physician assistants, and other medical professionals qualified to provide independent treatment (to include Special Forces medics). Medics (such as combat medics – military occupational specialty 68W) are not physician extender * A medical officer is defined as a physician with officer rank. The following are medical officers: An officer of the medical corps of the Army; an officer of the medical corps of the U.S. Navy; an officer in the U.S. Air Force designated as a medical officer in accordance with Title 10, U.S Code, section 101 c. Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows: * Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action * Injury caused by enemy emplaced trap, mine or other improvised explosive device * Injury caused by chemical, biological, or nuclear agent released by the enemy * Injury caused by vehicle or aircraft accident resulting from enemy fire * Smoke inhalation injuries from enemy actions that result in burns to the respiratory tract * Concussions (and/or mild traumatic brain injury (mTBI)) caused as a result of enemy-generated explosions that result in either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the concussive incident d. Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: * Frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951) * Trench foot or immersion foot * Heat stroke * Food poisoning not caused by enemy agents. * Exposure to chemical, biological, or nuclear agents not directly released by the enemy * Battle fatigue, neuro-psychosis and post-traumatic stress disorders. * Disease not directly caused by enemy agents. * Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action * Self-inflicted wounds, except when in the heat of battle and not involving gross negligence * First degree burns * Airborne (for example, parachute/jump) injuries not caused by enemy action * Hearing loss and tinnitus (for example: ringing in the ears, ruptured tympanic membrane) * Mild traumatic brain injury (mTBI) that does not result in loss of consciousness or restriction from full duty for a period greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function * Abrasions or lacerations (unless of a severity requiring treatment by a medical officer) * Bruises or contusions (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer). * Soft tissue injuries (for example, ligament, tendon or muscle strains, sprains, and so forth) //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003397 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1