IN THE CASE OF:	  

	BOARD DATE:	  15 May 2008

	DOCKET NUMBER:  AR20080002196 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Through a Member of Congress, the applicant requests, in effect, reconsideration of his earlier requests for award of the Combat Infantryman Badge (CIB); and that his separation document (DD Form 214) be corrected to reflect his service-connected disability based on his Post Traumatic Stress Disorder (PTSD).

2.  The applicant states, in effect, that he wants the CIB awarded to him for his Republic of Vietnam (RVN) service, and that his disability is an Agent Orange related illness.  He also states that while serving in the RVN, he was located near Ban Me Thuot and the Ho Chi Minh Trail.  He states that he handled wounded and dead men, and that there were daily reports and many other sources of information regarding their activities while they were in country.  He states that he has found a fellow veteran who can verify what he has been saying about this particular stressor.

3.  The applicant provides the following documents in support of his application:  Congressional Inquiry, dated 31 January 2008; Privacy Act Release Statement; Request Pertaining to Military Records (Standard Form 180); Self-Authored Letter, dated 23 January 2008; DD Form 214; Army Review Boards Agency, Support Division, St. Louis, Letter, dated 24 October 2005; Xeroxed Photograph (illegible); Postmarked Envelope; Headquarters, United States Military Assistance Command, Vietnam (MACV) Letter, dated 3 May 1966; Department of Veterans Affairs (VA) Rating Decision; Maps and Internet Guestbook Document Extracts; and Facsimile Coversheet.

CONSIDERATION OF EVIDENCE:

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 AR20040003721 on 5 April 2005.

2.  As indicated in the original Board decisional document, the applicant held an infantry military occupational specialty (MOS) and served as an infantryman; however, he was not assigned to a qualifying infantry unit of brigade, regimental, or smaller size and did not participate in active ground combat with such a qualifying infantry unit.  As a result, he did not satisfy the regulatory criteria necessary to support award of the CIB. 

3.  The applicant’s military record shows that he enlisted in the Regular Army and entered active duty on 15 July 1964.  He was trained in, awarded and served in MOS 11B (Light Weapons Infantryman).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he served in the RVN from 11 May 1965 to 4 May 1966, and that he was assigned to the MACV.  It also shows that he was promoted to private first class (PFC) on
14 July 1966, and that this is the highest rank he held while serving on active duty.  It also shows he was reduced for cause on at least three separate occasions.  

5.  The applicant’s Military Personnel Records Jacket (MPRJ) is void of any orders, or other documents indicating he was ever recommended for, or awarded the CIB by proper authority while serving on active duty.

6.  The applicant's MPRJ contains a Report of Medical Examination (Standard Form 88), which shows he underwent a medical examination for the purpose of separation on 20 April 1967.  It also confirms his Physical Profile was 111111, and that he was fully qualified for retention/separation.

7.  On 7 July 1967, United States Army Aviation Center, Fort Rucker, Alabama, Special Orders Number 138, directed the applicant’s release from active duty (REFRAD) on 14 July 1967, under the provisions of Army Regulation 635-200, and assigned a separation designator (SPN) code of 201.  The orders specifically indicated that his REFRAD was not by reason of physical disability.  



8.  On 14 July 1967, the applicant was honorably REFRAD after completing a total of 3 years of active military service.  The DD Form 214 issued to him on the date of his separation confirms he was REFRAD under the provisions of Army Regulation 635-200, by reason of “Expiration Term of Service (ETS)” and that he was assigned SPN 201.

9.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he earned the following awards during his active duty tenure:  Vietnam Service Medal (VSM); National Defense Service Medal (NDSM); RVN Campaign Medal (RVNCM) with Device (1960); and Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar.  The CIB was not included in this list of awards and the applicant authenticated this separation document with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his REFRAD.  

10.  A DD Form 215 (Correction to DD Form 214) issued on 24 October 2005 shows that the applicant’s separation document was corrected to add the Meritorious Unit Commendation, RVN Gallantry Cross with Palm Unit Citation, and 2 bronze service stars with his VSM.  

11.  The applicant provides a MACV Letter, dated 3 May 1966, which was issued by the commanding general (CG) at that time.  It states that the applicant was entitled to the Armed Forces Expeditionary Medal (AFEM) for his RVN service.

12.  The applicant also provides a VA Rating Decision, dated 23 February 2004, which shows he was granted an earlier effective date of 8 May 2001, for service connection for diabetes mellitus type II.  He was also awarded a 10 percent (%) disability rating for his service-connected condition of peripheral neuropathy, right lower extremity; and a 10% disability rating for his service-connected condition peripheral neuropathy, left lower extremity.  

13.  Army Regulation 600-8-22 (Military Awards) contains the Army’s awards policy.  Chapter 8 of the awards regulation contains guidance on award of combat and skill badges.  Paragraph 8-6 contains guidance on award of the CIB. It states, in pertinent part, that there are three basic requirements for the CIB: First, the member must hold and serve in an infantry MOS; second the member must be assigned to an infantry unit of brigade, regimental, or smaller size; and third, there must be evidence that the member was personally present and participated with his qualifying infantry unit while it was engaged in active ground combat with enemy forces.  The regulation stipulates that combat service alone does not support award of the CIB.  

14.  Paragraph 2-12 of the awards regulation contains guidance on the award of the AFEM.  It states, in pertinent part, that the AFEM will be awarded only for operations for which no other U.S. campaign medal is approved.  Service members who earned the AFEM for service in Vietnam between 1 July 1958 and 3 July 1965 may elect to receive the Vietnam Service Medal instead of the AFEM.  However, no service member may be issued both medals for service in Vietnam. 

15.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  The regulation in effect at the time of the applicant's separation stated, in pertinent part, that Soldiers will be separated from active duty upon termination of enlistment, period of induction, and other periods of active duty or active duty for training.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.  Chapter 4 contains guidance on processing through the PDES, which includes the convening of a Medical Evaluation Board (MEB) to document a Soldier's medical status and duty limitations insofar as duty is affected by the soldier's status.  If the MEB determines a soldier does not meet retention standards, the case will be referred to a Physical Evaluation Board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  

17.  The PEB also investigates the nature, cause, degree of severity, and probable permanency of the disability of soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

18.  Title 38, United States Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical 
condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be awarded the CIB for his combat service in the RVN was carefully considered.  However, although the applicant held and served in an infantry MOS while in the RVN, he was not assigned to nor did he serve in a qualifying infantry unit of brigade, regimental, or smaller size.  While his combat service and actions are not in question, combat service alone does not support award of the CIB.  Absent any evidence showing the applicant was recommended or awarded the CIB by proper authority while serving on active duty, or that confirms his assignment to and personal participation with a qualifying infantry unit while it was engaged in active ground combat with enemy forces, the regulatory burden of proof necessary to support award of the CIB still has not been satisfied in this case.  

2.  The applicant’s contention that his DD Form 214 should be corrected to reflect his service-connected disability for PTSD was also carefully considered.  However, the evidence of record confirms that the applicant was REFRAD by reason of ETS after he had undergone a complete separation medical examination that determined he was fully qualified for retention/separation at the time of his REFRAD.  His record is void of any medical treatment records or other documents that indicate he suffered from any physically or mentally disabling condition at the time of his REFRAD that would have warranted his separation processing through the Army's PDES.

3.  The applicant is advised that the VA is the appropriate agency to query regarding medical treatment and disability compensation for service-connected conditions subsequent to discharge.  His DD Form 214 reflects the conditions that existed at the time of his separation.  Therefore, absent any evidence that shows the conditions in question were medically unfitting for further service at the time of his discharge, there is an insufficient evidentiary basis upon which to support documenting his medical conditions on his separation document. 



4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  The applicant’s submission of the CG, MACV Letter confirms his entitlement to the AFEM for his RVN service.  However, the applicant has been awarded the VSM with 2 bronze service stars for this service, and by regulation, no member may receive both the AFEM and VSM for service in the RVN.  As a result, unless he submits a written request that he be awarded the AFEM in lieu of the VSM with 2 bronze service stars, and to the removal of the VSM with 2 bronze service stars from his record and separation document, he is not eligible to be awarded the AFEM at this time.  

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient to amend the decision of the ABCMR set forth in Docket Number AR20040003721 dated 5 April 2005; and/or as a basis to correct his separation document as requested.




      _________x______________
      	CHAIRPERSON
      
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.
ABCMR Record of Proceedings (cont)                                         AR20080002196



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ABCMR Record of Proceedings (cont)                                         AR20080002196



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