RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  08 May 2008
	DOCKET NUMBER:  AR20070017541 


	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.




Director



Analyst
      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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, in effect, that he be awarded the Purple Heart and the Combat Infantryman Badge. 

2.  The applicant essentially states that while attached to the 27th Infantry Regiment in Vietnam, he was involved in many ambushes and firefights, with definite kills, and naturally assumed he would be awarded the Combat Infantryman Badge.  However, after awhile, he spoke to his lieutenant about this, and the fact that his military occupational specialty (MOS) was 12A (Pioneer), and the lieutenant said that he saw no problem with him being awarded the Combat Infantryman Badge, and said that he would speak to their captain and, if need be, their colonel.  He also essentially states that about 7 to 10 days later, the lieutenant told him that there would be no problem awarding him the Combat Infantryman Badge.  He further states that in the latter part of 1968 while in base camp at Cu Chi, the recreation room he was in was attacked by mortars and rocket fire, which destroyed the recreation room, and that he was hit by shrapnel in the area of his left palm.  He continued by stating that his medic later accessed the wound and assured him it was not as bad as it looked, but felt that it should be looked at by a doctor because of the possibility there might be a small unseen fragment.  He then states that he was taken to the base hospital, and that after a doctor examined him, he was told that he was eligible for the Purple Heart.  He also states that the doctor took his information, then released him with light duty.  

3.  The applicant provides a self-authored statement in support of this application.

CONSIDERATION OF EVIDENCE:

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 Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show that he enlisted in the Regular Army on 20 June 1967.  He completed basic and advanced individual training and was awarded MOS 12A, and was later awarded MOS 12C (Bridge Crewman).  Later during his enlistment, he was awarded primary MOS 95B (Military Policeman), and an additional MOS of 95C (Correctional Specialist).  He departed for the Republic of Vietnam on 10 December 1967, and served with Company E, 65th Engineer Battalion, 25th Infantry Division during his tour in Vietnam.  He returned to the continental United States on 9 December 1968, and served at Fort Riley, Kansas until he was honorably released from active duty on 19 June 1970.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that was issued to him at the time of his release from active duty shows that he was awarded the Army Commendation Medal, the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Expert Marksmanship Qualification Badge with M-16 Rifle Bar, and the Marksman Marksmanship Qualification Badge with M-14 Rifle Bar.

3.  The applicant’s DD Form 214 does not show that he was awarded the Purple Heart.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not contain any entries that indicate he was wounded or injured as a result of hostile action.  Item 41 (Awards and Decorations) of this same document also does not show that he was awarded the Purple Heart.  There are no orders in his military records awarding him the Purple Heart.  Although a search of the United States Army Human Resources Command (USAHRC) Awards and Decorations Computer-Assisted Retrieval System (ADCARS), a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era, produced his orders awarding him the Army Commendation Medal, it failed to produce orders awarding him the Purple Heart.  Additionally, the applicant’s name is not listed on the Vietnam Casualty Roster.  

4.  The applicant’s military records do not show that he was awarded the Combat Infantryman Badge.  There is also no evidence that he ever possessed or served in an infantry MOS.  Item 38 (Record of Assignments) of the applicant's DA Form 20 only shows that he served as a Pioneer in MOS 12A and a Bridge Specialist in MOS 12C with Company E, 65th Engineer Battalion during his tour in Vietnam, and does not show that he was ever attached to the 27th Infantry Regiment.  Additionally, a search of the USAHRC ADCARS failed to produce orders awarding him the Combat Infantryman Badge. 

5.  The applicant essentially stated that while attached to the 27th Infantry Regiment in Vietnam, he was involved in many ambushes and firefights, with definite kills, and naturally assumed he would be awarded the Combat Infantryman Badge.  However, after awhile, he spoke to his lieutenant about this, and the fact that his MOS was 12A, and that the lieutenant said that he saw no problem with him being awarded the Combat Infantryman Badge, and that he would speak to their captain and, if need be, their colonel.  He also essentially stated that about 7 to 10 days later, the lieutenant told him that there would be no problem awarding him the Combat Infantryman Badge.  He further stated that in the latter part of 1968 while in base camp at Cu Chi, the recreation room he was in was attacked by mortars and rocket fire, which destroyed the recreation room, and that he was hit by shrapnel in the area of his left palm.  He continued by stating that his medic later accessed the wound and assured him it was not as bad as it looked, but felt that it should be looked at by a doctor because of the possibility there might be a small unseen unseen.  He then stated that he was taken to the base hospital, and that after a doctor examined him, he was told that he was eligible for the Purple Heart.  He also stated that the doctor took his information, then released him with light duty.  

6.  During a review of the applicant’s records, it was determined that he is entitled to additional awards and decorations that are not shown on his DD Form 214.

7.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This document shows that, at the time of the applicant’s assignment to the Company E, 65th Engineer Battalion, the company was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Department of the Army General Orders Number 5, dated 1973.  This document also shows that at the time of the applicant's assignment to the 65th Engineer Battalion, the battalion was cited for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation by Department of the Army General Orders Number 51, dated 1971.

8.  The applicant’s DD Form 214 shows that he was awarded the Vietnam Service Medal, but it does not show that he was awarded any bronze service stars to signify campaign participation credit.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-13 contains the regulatory guidance on the Vietnam Service Medal.  It states, in pertinent part, that a bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.  Table B-1 contains a list of Vietnam campaigns, and it shows that during the applicant’s assignment in Vietnam, the applicant participated in the Vietnam Counteroffensive Phase III campaign, the Tet Counteroffensive campaign, the Vietnam Counteroffensive Phase IV campaign, and the Vietnam Counteroffensive Phase V campaign.
9.  Army Regulation 600-8-22 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 military medical personnel, and the medical treatment must have been made a matter of official records.  Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire; the wound or injury must have required treatment by military medical personnel; and the records of medical treatment must have been made a matter of official Army records.

10.  Army Regulation 600-8-22 also 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.  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.  Battle or campaign participation credit alone is not sufficient; the unit must have been in active ground combat with the enemy during the period.  It is noted that the exigencies of combat may require non-infantry Soldiers to temporarily perform the basic infantry duties that all Soldiers are taught; however, it is not a basis for the award of the Combat Infantryman Badge.  

11.  U.S. Army Vietnam Regulation Number 672-1 (Awards and Decorations) specifically governed award of the Combat Infantryman Badge to Army forces operating in South Vietnam.  This regulation specifically stated that criteria for award of the Combat Infantryman Badge identified the man who trained, lived, and fought as an infantryman, and the Combat Infantryman Badge is the unique award established to recognize the infantryman and only the infantryman for his service.  Further, “the Combat Infantryman Badge is not an award for being shot at or for undergoing the hazards of day to day combat.”  

12.  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.  This regulation provides that 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.




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart and the Combat Infantryman Badge.

2.  While the sincerity of the applicant's claim to entitlement to award of the Purple Heart is not in question, there is no evidence in the applicant’s records, and the applicant failed to provide any evidence which shows that he was wounded in action, that he was treated by military medical personnel at the time for wounds received in action, and that this medical treatment was made a matter of official record.  Additionally, the applicant’s name is not listed on the Vietnam Casualty Roster.  In view of the foregoing, there is no basis for awarding the Purple Heart to the applicant in this case.

3.  The applicant served as a Pioneer in MOS 12A and as a Bridge Specialist in MOS 12C during his tour in Vietnam, and there is no evidence in his military records which show that he ever possessed or served in an infantry MOS.  The fact that the applicant served in combat and possibly engaged the enemy is not in question; however, the Combat Infantryman Badge is not an award for being shot at or for undergoing the hazards of day to day combat.  As there is no evidence that the applicant ever possessed and served in an infantry MOS with an infantry unit of brigade, regimental or smaller size at a time when the unit was engaged in combat with the enemy, and that he was personally present and engaging in such combat, there is no basis for awarding the Combat Infantryman Badge to the applicant in this case.

4.  General Orders awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Company E, 65th Engineer Battalion while the applicant was assigned to this company, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation to the 65th Engineer Battalion while the applicant was assigned to this battalion.  Therefore, he is entitled to award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and correction of his military records to show these unit awards.

5.  The applicant participated in four campaigns during his tour in Vietnam; therefore, he is entitled to correction of his military records to show four bronze service stars to be affixed to his already-awarded Vietnam Service Medal.



6.  Evidence shows that the applicant’s records contain administrative errors which does 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

__XXX __  __XXX__  __XXX__   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 error in the records of the individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned by:

	a.  awarding him the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation; and

	b.  showing four bronze service stars to be affixed to his already-awarded Vietnam Service Medal.




      ___        XXX                ___
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20070017541



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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