IN THE CASE OF:	  

		BOARD DATE:	        09 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080010179 


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.  The applicant requests, in effect, that he be awarded the Purple Heart with First Oak Leaf Cluster, the Bronze Star Medal with "V" (for Valor) Device, and the Combat Action Badge. 

2.  The applicant essentially states that since he had foolishly refused all awards and decorations at the time, he would now like to recant and accept two awards of the Purple Heart, the Bronze Star Medal with "V" Device, and the Combat Action Badge for action during the 1968 Tet offensive in Vietnam.  He also states, in effect, that he accepted the Presidential Unit Citation for his unit's action during the 1968 Tet offensive when his unit fired over 100,000 rounds under extreme conditions.  He continued by essentially stating that they also earned the Combat Action Badge, and that during this time he was hit twice by mortar fragments.  He also states that he lost a good friend who was hit in the chest and that his division had five Soldiers killed in action; therefore, he turned down the Purple Heart.  However, “he ran into the medic who patched up his good friend at the aid station down the road from where he crushed a finger between two powder canisters.” He further states that they kept looking at each other and began talking about places that they had been.  The medic remembered him and asked how his good friend was doing.  He told the medic that his good friend was killed in action, but that his (the applicant’s) wound had healed great.  



3.  Although the applicant essentially states that evidence of his bipolar disorder and post-traumatic stress disorder is located with the Department of Veterans Affairs (VA) in Knoxville, Tennessee, he provided no additional evidence 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 majority of the applicant’s military records from his service in the Army of the United States from 21 August 1967 to 21 August 1969 are not available for review.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) is the only remaining document that provides any relevant information related to his service in Vietnam, and this case is primarily being considered using information contained on this form.

3.  The applicant's DD Form 214 essentially shows that he was inducted into the Army of the United States on 21 August 1967.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 13A (Field Artillery Basic).  This document also shows that he served 
11 months and 25 days of foreign and/or sea service in the United States Army Pacific Command.  On 21 August 1969, he was honorably released from active duty.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal with Three Bronze Service Stars, the Republic of Vietnam Campaign Medal [with Device (1960)], and the Expert Marksmanship Qualification Badge with Rifle Bar.  He later served in the Tennessee Army National Guard, and was honorably discharged on 19 December 1997.



4.  The applicant's military records do not show that he was awarded any Purple Hearts or the Bronze Star Medal with "V" Device.  There are also no orders in his military records which awarded him the aforementioned decorations, and although a search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System, a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era, produced approximately 50 general orders for Soldiers with the same first and last name as the applicant, none of these general orders pertained to the applicant.  Additionally, there are no entries on the Vietnam Casualty Roster showing that the applicant was ever wounded in action.

5.  The applicant also essentially requested that he be awarded the Combat Action Badge.  However, retroactive awards of the Combat Action Badge are not authorized prior to 18 September 2001.  The fact that the applicant might have been requesting the Combat Infantryman Badge was also considered; however, the applicant was not eligible for award of the Combat Infantryman Badge because he was not serving in an infantry MOS nor assigned to an infantry unit of brigade, regimental or smaller size during his service in Vietnam.  

6.  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 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 medical personnel; and the records of medical treatment must have been made a matter of official Army records.  This regulation also states that a Purple Heart is authorized for the first wound suffered under conditions indicated above, but for each subsequent award an Oak Leaf Cluster will be awarded to be worn on the medal or ribbon.

7.  Army Regulation 600-8-22 also provides, in pertinent part, that the Bronze Star Medal is awarded to any person who distinguished himself or herself after 
6 December 1941 by heroic or meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy; or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders is required.

8.  Army Regulation 600-8-22 further provides, in pertinent part, that the Chief of Staff, Army approved the creation of the Combat Action Badge on 2 May 2005.  The requirements for award of the Combat Action Badge are branch and MOS 
immaterial.  Assignment to a combat arms unit or a unit organized to conduct close or offensive combat operations, or performing offensive combat operations is not required to qualify for the Combat Action Badge.  However, it is not intended to award the Combat Action Badge to all Soldiers who serve in a combat zone or imminent danger area.  The Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized.  The Soldier must be personally present and actively engaging or being engaged by the enemy, and performing satisfactorily in accordance with the prescribed rules of engagement. The Soldier must not be assigned or attached to a unit that would qualify the Soldier for the Combat Infantryman Badge or the Combat Medical Badge.  This regulation also states that award of the Combat Action Badge is authorized from 18 September 2001 to a date to be determined.  Retroactive awards of the Combat Action Badge are not authorized prior to 18 September 2001.

9.  Additionally, 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.  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.

10.  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.

11.  Title 10 of the United States Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or 


awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart with First Oak Leaf Cluster, the Bronze Star Medal with "V" Device, and the Combat Action Badge. 

2.  While the sincerity of the applicant's claim to entitlement to award of the Purple Heart with First Oak Leaf Cluster is not in question, there is no evidence in the available records, and the applicant failed to provide any evidence which conclusively shows that he was ever wounded or injured as a result of hostile action, that he was treated by medical personnel at the time for any wounds or 
injuries sustained as a result of hostile action, and that this medical treatment was made a matter of official record.  Regrettably, absent such evidence, there is no basis for awarding him any Purple Hearts.

3.  While the sincerity of the applicant's claim to entitlement to award of the Bronze Star Medal with "V" Device is also not in question, all awards of the Bronze Star Medal with "V" Device must be announced in official orders, which the applicant did not provide, and are not in his military records.  There is also no evidence in the available records, and the applicant failed to provide evidence which conclusively shows that he distinguished himself by heroic achievement in connection with military operations against an armed enemy.  In view of the foregoing, there is no basis for awarding him the Bronze Star Medal with "V" Device. 

4.  As retroactive awards of the Combat Action Badge are not authorized prior to 18 September 2001, there is no basis for awarding the applicant the Combat Action Badge.  Additionally, if in fact that the applicant was actually requesting that he be awarded the Combat Infantryman Badge, he is also not eligible for this badge because he was not serving in an infantry MOS nor assigned to an infantry unit of brigade, regimental or smaller size during his service in Vietnam.  

5.  While the available evidence is insufficient for awarding the applicant the Bronze Star Medal with "V" Device, this in no way affects the applicant’s right to pursue his claim for this award by submitting a request through his Member of Congress under the provisions of 10 USC 1130.


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 wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.



      ___        XXX                ___
                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)                                         AR20080010179



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ABCMR Record of Proceedings (cont)                                         AR20080010179



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