IN THE CASE OF:	  

		BOARD DATE:	        24 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080010881 


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 reconsideration of his previous request for award of the Combat Infantryman Badge.  He also requests award of the Silver Star and the Purple Heart.

2.  The applicant states that the Silver Star, the Purple Heart, and the Combat Infantryman Badge were given to him at Fort Bragg, North Carolina, and that now his medals are missing.

3.  The applicant provides in support of his application, a copy of his Correction to DD Form 214 (DD Form 215); and a copy of a Privacy Release Form dated 14 May 2008.

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.  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 AR20050018201, on 29 August 2006.

3.  The applicant requests reconsideration for award of the Combat Infantryman Badge, which was previously denied by the Board in the above Docket Number.  However, the applicant has not provided any new evidence or argument to warrant reconsideration; therefore, this issue will not be considered by this Board and will not be discussed further in this Record of Proceedings.

4.  On 23 May 1967, the applicant was inducted into the Army in New Orleans, Louisiana.  He successfully completed his training as a light vehicle driver.  He was transferred to Vietnam on 19 October 1967.

5.  While in Vietnam, the applicant participated in the Vietnam Counteroffensive Campaign, Phase III, which extended from 1 June 1967 through 29 January 1968; the Tet Counteroffensive Campaign, which extended from 30 January 1968 through 1 April 1968; the Vietnam Counteroffensive Campaign, Phase IV, which extended from 2 April through 30 June 1968; and the Vietnam Counteroffensive Campaign, Phase V, which extended from 1 July 1968 through 1 November 1968.

6.  The applicant returned to the Continental United States on 14 October 1968.

7.  On 22 May 1969, the applicant was honorably released from active duty (REFRAD) and he was transferred to the United States Army Reserve (USAR) Control Group (Annual Training) to complete his Reserve obligation.

8.  The Report of Transfer or Discharge (DD Form 214) that the applicant was furnished at the time of his REFRAD shows that he was awarded the National Defense Service Medal, the Vietnam Campaign Medal and the Vietnam Service Medal.

9.  A review of the applicant’s records does not show that orders were ever published awarding him the Silver Star, the Purple Heart, or the Combat Infantryman Badge.  Further review of the applicant’s records does not show that he was ever wounded as a result of hostile action by enemy forces while he was in the Army.



10.  On 12 December 2005, the applicant petitioned this Board requesting award of the Bronze Star Medal, the Combat Infantryman Badge, the Republic of Vietnam Gallantry Cross, and any other awards or decorations not listed on his discharge document that he was entitled to for his service in the United States Army.

11.  On 29 August 2006, he was granted partial relief by amending his DD Form 214 to delete the Vietnam Campaign Medal and the Vietnam Service Medal; and by adding the Republic of Vietnam Campaign Medal with Device (1960), the Vietnam Service Medal with 4 bronze service stars, the Good Conduct Medal, the Meritorious Unit Commendation, the Republic of Vietnam Gallantry Cross 
with Palm Unit Citation, the Sharpshooter Marksmanship Qualification Badge 
with Rifle Bar, and 2 Overseas Service Bars.  His DD Form 214 was also amended to add his service in Vietnam from 19 October 1967 to 14 October 1968.

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

13.  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 required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

14.  Army Regulation 600-8-22 (Military Awards) 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 military occupational specialty (MOS).  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  The Awards Branch of the U.S. Army Human Resources Command (formerly known as the Total Army Personnel Command) has advised, in similar cases, that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11F, 11G, or 11H.

15.  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’s records do not show that he is entitled to award of the Silver Star or the Purple Heart.

2.  There is no evidence in the available record, nor has the applicant submitted any evidence to show that he met the criteria for any of the awards that he is requesting or that orders were ever published awarding him the Silver Star or the Purple Heart.

3.  While the available evidence is insufficient for awarding the applicant a Silver Star, this in no way affects the applicant’s right to pursue his claim for the Silver Star by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

4.  His DD Form 214 was previously amended to include all of the awards to which he is entitled under the applicable regulations.  Accordingly, he is not entitled to the Purple Heart or the Silver Star.

5.  In order to justify correction of a military record the applicant must show 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.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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 as a basis to amend the decision of the ABCMR set forth in Docket Number AR20050018201, dated 29 August 2006 or as a basis for correction of the records of the individual concerned.



      ___        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)                                         AR20080010881



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080010881



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1