RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060014535 


	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. Gerard W. Schwartz

Acting Director

Ms. Antoinette Farley

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell  

Chairperson

Mr. Thomas M. Ray

Member

Ms. Rea M. Nuppenau

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 award of the Purple Heart, the Bronze Star Medal, the Combat Infantryman Badge, the Expert Infantryman Badge, the Vietnamese Armed Forces Expeditionary Medal [correctly known as the Armed Forces Expeditionary Medal], the Silver Star, the Distinguished Service Cross, and Jump Wings [correctly known as the basic Parachutist Badge].

2.  The applicant states, in effect, that his records where lost in transit when he was reassigned from the Republic of Vietnam to Korea.  The applicant continues that when he was separated in California his records "were a mess" and he did not pay attention to his separation documents until he filed for benefits from the Department of Veteran Affairs (DVA).  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 30 June 1973 in support of this case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged error which occurred on 3 June 1973, the date of his release from active duty.  The application submitted in this case is dated 29 September 2006.

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 requested correction of his records to show award of the Bronze Star Medal and the Silver Star.  There are no orders or other evidence that the applicant was authorized this award.  In the absence of authority for these awards, the applicant may request award of the Distinguished Service Cross, the Bronze Star Medal, and the Silver Star under the provisions of Section 1130 of Title 10, United States Code.  The applicant has been notified by separate correspondence of the procedures for applying for these awards under Section 1130 and, as a result, it will not be discussed further in this Record of Proceedings.
4.  The applicant's military records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, the applicant provided sufficient documents for the Board to conduct a fair and impartial review of this case.

5.  The applicant's DD Form 214 shows that he entered active duty on 28 September 1970 and was awarded the military occupational specialty (MOS) 11B (Light Weapons Infantryman).  

6.  The applicant's DD Form 214 show that, on 30 June 1973, the applicant was honorably released from active duty, as an overseas returnee and transferred to the United States Army Reserve Control Group (Reinforcement) to complete his service obligation.  The highest rank the applicant attained while serving on active duty was sergeant/pay grade E-5.  The applicant's record show he served in Indochina and Korea, but does not show that he served in the Republic of Vietnam.

7.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows award of the Armed Forces Expeditionary Medal, the National Defense Service Medal, and the Sharpshooter Marksmanship Badge with Rifle Bar.  

8.  Item 24 of the applicant's DD Form 214 does not show the applicant was awarded the Purple Heart, the Combat Infantryman Badge, the Expert Infantryman Badge, and the basic Parachutist Badge.  

9.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not show any entries for wounds received.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not show award of the Purple Heart, the Combat Infantryman Badge, the Expert Infantryman Badge, and the Parachutist Badge. 

10.  There are no medical records in the applicant's official military personnel file that show he sustained wounds as a result of hostile action or that show he was treated for wounds sustained as a result of hostile action.

11.  There are no general orders in the applicant's records to show he was awarded the Purple Heart.


12.  The applicant's name does not appear on the Korean Casualty File. 

13.  Item 31 (Foreign Service) of the applicant's DD Form 20 shows the applicant served in Korea during the period 5 May 1972 through 29 June 1973.  Item 31 of the applicant's DD Form 20 does not show the applicant served in the Republic of Vietnam during his period of enlistment from 28 September 1970 through 30 June 1973.

14.  Item 38 (Record of Assignments) of the applicant's DD Form 20 shows that the applicant served in MOS 11B20 (Runner), MOS 11D20 (Carrier Driver), and MOS 11D40 (Assistant Squad Leader) with the 1st Battalion 17th Infantry Regiment of the 2nd Infantry Division in Korea during the period 5 May 1972 through 29 June 1973.  Item 38 (Record of Assignments) of the applicant's DA Form 20 also shows that all of his recorded conduct and efficiency ratings were excellent throughout his tour of service.

15.  Army Regulation 672-5-1 (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 been treated by a medical officer, and the medical treatment must have been made a matter of official records.

16.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and procedures concerning awards.  Paragraph 8-6 provides for award of the Combat Infantryman Badge.  This paragraph states that there are special provisions that exist for Soldiers who served in Korea subsequent to 4 January 1969.  Soldiers must have served in the hostile fire area at least 60 days and be authorized hostile fire pay.  The individuals must have been assigned to an infantry unit of company or smaller size and must have been an infantry officer in the grade of captain or lower or in the case of warrant officers and enlisted men must have had an infantry military occupational specialty.  The Soldier must have been engaged with the enemy in the hostile fire area or in active ground combat involving an exchange of small arms fire at least five times.  The Soldier must be recommended personally by each commander in the chain of command and approved at the division level.  There are no provisions for retroactive award of the Combat Infantryman Badge for Korean veterans.





17.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and procedures for awards, in pertinent part, paragraph 8-8 provides for award of the Expert Infantryman Badge.  Award of the Expert Infantryman Badge requires that an individual must have satisfactorily completed the prescribed proficiency tests while assigned or attached to an infantry unit of at least battalion size.  To be eligible for testing and award of the Expert Infantryman Badge, a Soldier must be in an active Army status and must have an infantry or special forces specialty.

18.  Army Regulation 600-8-22 (Military Awards), in pertinent part, sets forth requirements for award of the basic Parachutist Badge.  Award of the basic Parachutist Badge requires that an individual must have satisfactorily completed the prescribed proficiency tests while assigned or attached to an airborne unit or the Airborne Department of the Infantry School, or have participated in at least one combat parachute jump.

19.  Review of the applicant's records indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

20.  Army Regulation 600-8-22 (Military Awards) provides that the Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to award of the Purple Heart.

2.  There are no general orders that show the applicant was awarded the Purple Heart.  There is no evidence in his service personnel records which shows that he was wounded or injured as a result of hostile action or treated for such wounds.  

3.  The applicant's name is not listed on the Republic of Vietnam Casualty Roster or the Korean Casualty List as being treated for wounds or injures as a result of hostile action.  

4.  In the absence of evidence that the applicant was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case.
5.  The applicant contends that he is entitled to correction of his records to show award of the Combat Infantryman Badge.  The records available contain no evidence which shows the applicant was awarded the Combat Infantryman Badge.  Evidence shows he was awarded an infantry military occupational specialty.  However, there is no evidence that the applicant served in an infantry duty position in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size, all of which are required by regulation for award of the Combat Infantryman Badge.  Based on the foregoing facts, there is insufficient basis for award of the Combat Infantryman Badge.

6.  The applicant contends that he is entitled to award of the Expert Infantryman Badge.  There is no evidence in the available records and the applicant has not provided evidence which shows that he was awarded the Expert Infantryman Badge.  There is no evidence that the applicant satisfactorily completed the prescribed proficiency tests while assigned or attached to an infantry unit of at least battalion size.  To be eligible for testing and award of the Expert Infantryman Badge, a Soldier must be in an active Army status and must have an infantry or Special Forces specialty.  Based on the foregoing there is insufficient evidence upon which to base award of the Expert Infantryman Badge.

7.  The applicant contends that he is entitled to award of the basic Parachutist Badge.  There is no evidence in the available records and the applicant has not provided evidence which shows that he satisfactorily completed the prescribed proficiency tests while assigned or attached to an airborne unit or the Airborne Department of the Infantry School, or have participated in at least one combat parachute jump.  Based on the foregoing there is insufficient evidence upon which to base award of the basic Parachutist Badge. 

8.  The applicant's military service records do not contain any orders awarding him the Good Conduct Medal.  However, the applicant is entitled to the first award of the Good Conduct Medal for the period 5 May 1972 through 29 June 1973 based on completion of a period of qualifying service ending with the termination of a period of Federal military service.  Therefore, he is entitled to correction of his records to show this award.

9.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 29 June 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 28 June 1976.  Although the applicant did not file within the ABCMR's statute of limitations, it is appropriate to waive failure to timely file based on the fact there is no statute of limitations on requests for award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_TMR___  _RMN_ __  _JTM___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by award of the Good Conduct Medal (First Award).

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the Purple Heart, the Combat Infantryman Badge, the Expert Infantryman Badge, and the basic Parachutist Badge.  




_John T. Meixell__
          CHAIRPERSON




INDEX

CASE ID
AR20060014535
SUFFIX

RECON

DATE BOARDED
20070417
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1973/06/30
DISCHARGE AUTHORITY
AR 635-200 
DISCHARGE REASON
SEC VII, CH 5, Early Sep of O/S Returnee
BOARD DECISION
Partial Grant 
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.