IN THE CASE OF:	  

		BOARD DATE:	        07 OCTOBER 2008

		DOCKET NUMBER:  AR20080010329 


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 his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show the award of the Purple Heart and the Combat Infantryman Badge. 

2.  The applicant essentially states that he was wounded by a punji stick while on patrol in Vietnam, and that he is getting witness statements from some of his squad members regarding this.  He also states that during this patrol, one or more of his squad was wounded, and that he did not request treatment until later, and was then transferred to the 4th Medical Battalion for treatment for a large abscess that was caused by the punji stick.  He further believes that the Purple Heart not being added to his DD Form 214 was an oversight due to records not keeping up to date and the fact that he was more concerned about his squad members being treated, and did not think his wound was a problem until later when the infection set it in.  Additionally, he states that the Combat Infantryman Badge should have been added to his DD Form 214.

3.  The applicant provides an undated addendum, his DD Form 214 and 
DA Form 20 (Enlisted Qualification Record), two DA Forms 8-275-3 (Clinical Record Cover Sheet) with dates of disposition of 13 July 1967 and 15 January 1968, and a letter, dated 11 June 2008, from the Department of Michigan office of the American Legion 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 was inducted into the Army of the United States on 16 November 1966.  He completed basic and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He departed for the Republic of Vietnam on 28 May 1967, and was assigned to Company B, 2nd Battalion, 8th Infantry Regiment, 4th Infantry Division.  He returned to the continental United States on 21 May 1968, and was stationed at Fort Carson, Colorado until he was honorably released from active duty on 9 September 1968.  The DD Form 214 that was issued to him at the time of his release from active duty shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal with One Bronze Service Star, and the Republic of Vietnam Campaign Medal.

3.  The applicant's DD Form 214 does not show that he was awarded the Purple Heart.  Item 40 (Wounds) of the applicant’s DA Form 20 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, and 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, also failed to produce any orders awarding him the Purple Heart.  Additionally, the applicant’s name is not listed on the Vietnam Casualty Roster.   Further, there is no evidence in his military personnel records which shows that he was wounded or injured as a result of hostile action.



4.  The applicant essentially stated that he was wounded by a punji stick while on patrol in Vietnam, and that he is getting witness statements from some of his squad members regarding this.  He also stated that during this patrol, one or more of his squad was wounded, and that he did not request treatment until later, and was then transferred to the 4th Medical Battalion for treatment for a large abscess that was caused by the punji stick.  He further believes that the Purple Heart not being added to his DD Form 214 was an oversight due to records not keeping up to date, and the fact that he was more concerned about his squad members being treated, and did not think his wound was a problem until later when the infection set it in.

5.  The applicant provided, in pertinent part, two DA Forms 8-275-3.  The form with a date of disposition of 13 July 1967 only essentially shows that he was diagnosed with flu-like syndrome in July 1967.  The form with a date of disposition of 15 January 1968 shows that he was diagnosed with an abscess without lymphangitis below his knee which occurred in the line of duty.  However, this document does not state that this abscess was the result of a wound or injury sustained as a result of hostile action.

6.  The applicant's DD Form 214 also does not show that he was awarded the Combat Infantryman Badge.  However, he was awarded the Combat Infantryman Badge by Headquarters, 4th Infantry Division Special Orders Number 221, dated 9 August 1967. 

7.  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.

8.  The applicant's DD Form 214 does not show that he was awarded the Army Commendation Medal.  However, he was awarded the Army Commendation Medal by Headquarters, 4th Infantry Division General Orders Number 2190, dated 27 May 1968.

9.  The applicant served 1 year, 9 months, and 24 days of continuous enlisted active duty service from 16 November 1966 to 9 September 1968.  However, his military records do not show that he was awarded the Good Conduct Medal.  All of his conduct and efficiency ratings were "excellent" or "unknown" throughout this timeframe, and there is no derogatory information in his military records which could be a disqualifying factor in awarding him the Good Conduct Medal for this period of service.



10.  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 Company B, 2nd Battalion, 8th Infantry Regiment, the company was cited for award of the Presidential Unit Citation by Department of the Army General Orders Number 38, dated 1971.  This document also shows that at the time of the applicant's assignment to the 2nd Battalion, 8th Infantry Regiment, the battalion was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Department of the Army General Orders Number 3, dated 1970, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation by Department of the Army General Orders Number 53, dated 1970.

11.  The applicant’s DD Form 214 shows that he was awarded the Vietnam Service Medal with One Bronze Service Star to signify that he participated in one campaign during his tour in Vietnam.  Paragraph 2-13 of Army Regulation 
600-8-22 (Military Awards) 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 his tour in Vietnam, the applicant participated in the Vietnam Counteroffensive Phase II campaign, the Vietnam Counteroffensive Phase III campaign, the Tet Counteroffensive campaign, and the Vietnam Counteroffensive Phase IV campaign.

12.  The applicant's DD Form 214 does not show that he was awarded the Sharpshooter Marksmanship Qualification Badge with M-14 Rifle Bar.  However, he was awarded the Sharpshooter Marksmanship Qualification Badge with M-14 Rifle Bar by Headquarters, United States Army Training Center and Fort Leonard Wood, Fort Leonard Wood, Missouri Special Orders Number 18, dated 
18 January 1967.

13.  The applicant's DD Form 214 does not show that he was awarded the Sharpshooter Marksmanship Qualification Badge with Machinegun Bar.  However, he was awarded the Sharpshooter Marksmanship Qualification Badge with Machinegun Bar by Headquarters, Fort Polk, Fort Polk, Louisiana Special Orders Number 059, dated 6 March 1967.

14.  The applicant's DD Form 214 does not show that he was awarded the Marksman Marksmanship Qualification Badge with M-16 Rifle Bar.  However, he was awarded the Marksman Marksmanship Qualification Badge with M-16 Rifle Bar by Headquarters, Fort Polk, Fort Polk, Louisiana Special Orders Number 055, dated 1 March 1967.

15.  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 record of medical treatment must have been made a matter of official Army records. 

16.  Army Regulation 600-8-22 also provides, in pertinent part, 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.

17.  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 his DD Form 214 should be corrected to show the award of the Purple Heart and the Combat Infantryman Badge. 

2.  The evidence provided by the applicant, which included two DA Forms 
8-275-3, was carefully considered.  However, the form with a date of disposition of 13 July 1967 only essentially shows that he was diagnosed with flu-like syndrome in July 1967, and the form with a date of disposition of 15 January 1968 shows that he was diagnosed with an abscess without lymphangitis below his knee which occurred in the line of duty.  However, the latter document does not state that this abscess was the result of a wound or injury sustained as a result of hostile action.  Further there is no evidence in the applicant's military records which shows that he was wounded or injured as a result of hostile action, and there is no entry on the Vietnam Casualty Roster for the applicant.  While the sincerity of the applicant's claim to entitlement to award of the Purple Heart is not questioned, absent evidence which conclusively proves, by a preponderance of the evidence, that he was wounded or injured as a result of hostile action, that he was treated by medical personnel for wounds or injuries as a result of hostile action, and that this treatment was made a matter of official record, regrettably, there is insufficient basis for awarding the Purple Heart to the applicant in this case.

3.  Special orders awarded the applicant the Combat Infantryman Badge, but it is not listed on his DD Form 214.  Therefore, he is entitled to correction of his military records to show the award of the Combat Infantryman Badge.

4.  General orders awarded the applicant the Army Commendation Medal, but it is not listed on his DD Form 214.  Therefore, he is entitled to correction of his military records to show the award of the Army Commendation Medal.

5.  The applicant served 1 year, 9 months, and 24 days of continuous enlisted active duty service from 16 November 1966 to 9 September 1968, and all of his conduct and efficiency ratings were "excellent" or "unknown" throughout this timeframe.  There is also no derogatory information in his military records which could be a disqualifying factor in awarding him the Good Conduct Medal for this period of service.  Therefore, it would be appropriate at this time to award him the Good Conduct Medal for the period 16 November 1966 to 9 September 1968, and to correct his military records to show the award of the Good Conduct Medal.

6.  General orders awarded the Presidential Unit Citation to Company B, 2nd Battalion, 8th Infantry Regiment while the applicant was assigned to this company.  General orders also awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation to the 2nd Battalion, 8th Infantry Regiment while the applicant was assigned to this battalion.  Therefore, he is entitled to award of the Presidential Unit Citation, 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.

7.  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.

8.  Special orders awarded the applicant the Sharpshooter Marksmanship Qualification Badge with M-14 Rifle Bar and Machinegun Bar, and the Marksman Marksmanship Qualification Badge with M-16 Rifle Bar.  Therefore, he is entitled 


to correction of his military records to show the award of the Sharpshooter Marksmanship Qualification Badge with M-14 Rifle Bar and Machinegun Bar, and the Marksman Marksmanship Qualification Badge with M-16 Rifle Bar.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__XXX __  __XXX__  __XXX__   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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing the award of the Combat Infantryman Badge, the Army Commendation Medal, the Sharpshooter Marksmanship Qualification Badge with M-14 Rifle Bar and Machinegun Bar, and the Marksman Marksmanship Qualification Badge with M-16 Rifle Bar;

	b.  awarding him the Good Conduct Medal for the period 16 November 1966 to 9 September 1968 while serving as a sergeant;

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

	d.  showing the Vietnam Service Medal with Four Bronze Service Stars, and removing the Vietnam Service Medal with One Bronze Service Star.

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 awarding him the Purple Heart.  



3.  The Board wants to thank the applicant for the sacrifices he made in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his honorable 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)                                         AR20080010329



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ABCMR Record of Proceedings (cont)                                         AR20080010329



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