RECORD OF PROCEEDINGS


	IN THE CASE OF:	  
		  

	BOARD DATE:	  28 July 2005
	DOCKET NUMBER:  AR20050001348 


	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

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Larry C. Bergquist

Member

Mr. James B. Gunlicks

Member

	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 correction of his records to show award of the Purple Heart and the Combat Infantryman Badge.

2.  The applicant states, in effect, that he received shell fragment wounds to his left knee in August 1970 while serving in Vietnam.  

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a DA Form 20 (Enlisted Qualification Record); a Standard Form 88 (Report of Medical Examination), dated 12 May 1971; and a Standard Form 89 (Report of Medical History), dated 12 May 1971.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 28 May 1971.  The application submitted in this case is dated 28 January 2005.

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 limitations 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 was inducted 10 July 1969 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  His DA Form 20 shows that he served with the 1st Infantry Division in an infantry position from 10 April through 30 August 1970 and was credited with participating in three campaigns.  

4.  Records show that the applicant was absent without leave (AWOL) on 23 April to 8 May 1970 and 4 to 9 September 1970.

5.  Item 37 (lower extremities) of the applicant's Standard Form 88 (Report of Medical Examination) dated 12 May 1971 indicates derangement of left knee with a P-3 profile.  

6.  A Standard Form 89 (Report of Medical History), dated 12 May 1971, shows that the applicant was being separated and that he stated "Fair knees left and right sometimes swollen and painful, left knee area around tibia is dead."  Item 32 (Have you ever had any illness or injury other than those already noted?) shows that he indicated "no".

7.  The applicant was honorably released from active duty on 28 May 1971 and transferred to the U.S. Army Reserve.

8.  A DD Form 214 with the ending period 28 May 1971 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal "w/o bronze service stars," and the Republic of Vietnam Campaign Medal with Device (1960).

9.  There are no general orders in the applicant’s service personnel records that show he was awarded the Purple Heart.  There also is no evidence in his service personnel records that shows that he was treated for wounds as a result of hostile action in Vietnam.  The applicant's name is not listed on the Vietnam Casualty Roster.  

10.  There are no orders in the applicant's service personnel records awarding him the Combat Infantryman Badge.

11.  Item 40 (Wounds) of the applicant's DA Form 20 shows the entry "Fragments Left Leg" and item 41 (Awards and Decorations) does not show award of the Purple Heart or Combat Infantryman Badge.  

12.  Department of the Army General Orders Number 8, 1974, announced   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.

13.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal.

14.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound 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, and the medical treatment must have been made a matter of official record.  This regulation also provides that there is no statute of limitations on request for award of the Purple Heart.

15.  Army Regulation 600-8-22 provides, in pertinent part, that the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry MOS.  There are basically three requirements for award of the Combat Infantryman Badge.  The Soldier must be an infantryman satisfactorily performing infantry duties, must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and must actively participate in such ground combat.  Campaign or battle credit alone is not sufficient for award of the Combat Infantryman Badge.  The Awards Branch of the U.S. Army Human Resources Command has advised, in similar cases, that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11F, 11G, or 11H.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DA Form 20 shows he received fragment wounds to his left leg in August 1970.  However, military medical documents show only that he was diagnosed with derangement (i.e. dislocation) of the left knee.  There are no orders in the applicant's service personnel records that show he was awarded the Purple Heart.  

2.  The applicant's name does not appear on the Vietnam Casualty Roster, the applicant has not provided evidence, such as accounts from his chain of command at the time or medical personnel who treated his wounds that show he was wounded or treated for wounds as a result of hostile action.  There is no corroborating evidence that the derangement of his left knee was caused by his receiving fragment wounds to his left leg.

3.  In the absence of military records which show the applicant was wounded or treated for wounds as a result of hostile action, there is insufficient basis for award of the Purple Heart in this case.

4.  Evidence of record shows that the applicant was awarded an infantry MOS and that he served in an infantryman position.  However, his military records show he was AWOL for a period of time while in Vietnam.  There is insufficient evidence to show he satisfactorily performed his infantry duties while serving in Vietnam and thus insufficient evidence to show he is eligible for the Combat Infantryman Badge.  

5.  The applicant met the eligibility criteria for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and three bronze service stars to be worn on his Vietnam Service Medal.  These awards should be added to his DD Form 214.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 28 May 1971.  Therefore, the time for the applicant to file a request for correction of any error or injustice expired on 27 May 1974.  Although the applicant did not file within the ABCMR's statute of limitations, it is appropriate to waive failure to timely file in this case based on the fact there is no statute of limitations on requests for award of the Purple Heart.

7.  Evidence shows that the applicant’s records contain administrative errors which do not require action by the Board.  Therefore, administrative correction of the applicant's records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ WDP _  __ LCB  _  __ JBG  _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The Board determined that administrative errors in the records of the individual concerned should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and three bronze service stars to be worn on his Vietnam Service Medal.




	      __ William D. Powers __
                       CHAIRPERSON




INDEX

CASE ID
AR20050001348
SUFFIX

RECON

DATE BOARDED
28 July 2005
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.

2.

3.

4.

5.

6.