IN THE CASE OF:	  

		BOARD DATE:	        30 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080011479 


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

2.  The applicant states, in effect, that he was injured the second time on 3 May 1968 when a satchel charge landed in his foxhole damaging his left knee.  He was in the hospital for over 8 months. 

3.  The applicant provides a copy of his DD Form 214; a copy of his first Purple Heart Award Certificate; and copies of Western Union Telegrams.

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.  On 11 July 1967, the applicant enlisted in the Regular Army for a period of
3 years.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He attained the grade of private first class/E-3.  On 14 February 1969, he was placed on the temporary disability retired list (TDRL) due to a gunshot wound to his left knee and multiple residual medical conditions. 

3.  The applicant served in the RVN from 21 January – 13 June 1968.  He performed duties as a rifleman with Company A, 2nd Battalion, 327th Infantry Regiment.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 does not show award of the second Purple Heart.  The applicant received the Purple Heart the first time for wounds sustained in action on 25 February 1968.  There are no general orders in the applicant’s records to show he was awarded a second Purple Heart.

5.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) shows that he received a gunshot wound to the left knee on 3 May 1968.

6.  The Vietnam Casualty Roster shows the applicant's casualty status code was "22."  This code indicates the status "hostile wounded in action, serious hospitalized."  The Vietnam Casualty Roster also shows he was wounded for the second time on 3 May 1968.

7.  The applicant submitted copies of Western Union Telegrams that were sent to his parents regarding his being wounded in action on 3 May 1968, his evacuation, and medical treatment received at the hospital.

8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.

9.  There are no orders in the applicant's military record showing he was awarded the CIB.  During the processing of this case, a member of the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the United States Army 
Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any CIB orders on file for the applicant.

10.  Paragraph 8-6 of Army Regulation 600-8-22 provides for award of the CIB.  This paragraph states that there are basically three requirements for award of the CIB.  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.  Specific requirements state, in effect, that an Army enlisted Soldier must have an infantry specialty and satisfactorily performed duty while assigned or attached as a member of an infantry unit of brigade, regimental, or smaller size during any period such unit was engaged in active ground combat.  A recipient must be personally present and under hostile fire while serving in an assigned infantry primary duty in a unit actively engaged in ground combat with the enemy.  Commanders were not allowed to make any exceptions to this policy.

11.  The Awards Branch of the U.S. Army Human Resources Command (USA HRC) [formerly known as the Total Army Personnel Command] has advised, in similar cases, that during the Vietnam era the CIB was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11F, 11G, or 11H.  

12.  U.S. Army Vietnam Regulation Number 672-1 (Awards and Decorations) specifically governed award of the CIB to Army forces operating in South Vietnam.  This regulation specifically stated that criteria for award of the CIB identified the man who trained, lived, and fought as an infantryman and the CIB is the unique award established to recognize the infantryman and only the infantryman for his service.  Further, “the CIB is not an award for being shot at or for undergoing the hazards of day to day combat.”  This regulation also stated the CIB was authorized for award to infantry officers and to enlisted and warrant officer persons who have an infantry MOS and required that they must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.

13.  Review of the applicant's record indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

14.  The applicant's records show that he received ratings of excellent in conduct and efficiency.  There is no evidence the applicant was disqualified for award of the Army Good Conduct Medal (AGCM).


15.  Army Regulation 672-5-1, in effect at the time, provides that the AGCM is awarded to individuals who have completed a qualified 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.  The enlisted person must have had all “excellent” conduct and efficiency ratings and no convictions by a court-martial.  Ratings of "Unknown" for portions of the period under consideration are not disqualifying.  Service and efficiency ratings based upon academic proficiency of at least "Good" rendered subsequent to
22 November 1955 are not disqualifying.

16.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the applicant is entitled to award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 43, dated 1970; and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation based on Department of the Army General Orders Number 48, dated 1971. 

17.  The applicant's records show he was awarded the Vietnam Service Medal.  However, his DD Form 214 does not show any bronze service stars indicating campaign credit.  His records indicate he participated in 3 campaigns, the Vietnam Counteroffensive Phase III, The Tet Counteroffensive, and the Vietnam Counteroffensive Phase IV campaigns.   

18.  Appendix B of Army Regulation 600-8-22 lists all approved Army campaigns, including campaigns of the Vietnam War.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to award of the second Purple Heart.

2.  The applicant's official record shows he was wounded in action for the second time on 3 May 1968.  The Vietnam Casualty Roster confirms this information.  Therefore, he is entitled to award of the second Purple Heart and to have his record corrected to show this award.

3.  In order to qualify for award of the CIB, the applicant must show that he was an infantryman satisfactorily performing infantry duties, that he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and that he must have actively participated in such ground combat.  The 

applicant was assigned to an infantry unit in the RVN, he was performing infantry duties when he was wounded in action against the enemy on 2 occasions and was awarded the Purple Heart.  The applicant has shown by a preponderance of evidence that he met the criteria for award of the CIB, and is, therefore, authorized award of the CIB and correction of his records to show this award. 

4.  The applicant completed a qualifying period of service for the first award of the AGCM.  There is no evidence in the available records which show the applicant was disqualified for this award.  Therefore, the applicant is entitled to award of the AGCM for the period 11 July 1967 through 11 February 1969 and to correction of his records to show the award of the AGCM (First Award).

5.  General Orders awarded the applicant's unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation which is not shown on his DD Form 214. Therefore, he is entitled to have his records corrected to show this foreign unit award.

6.  General Orders awarded the applicant's unit the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation which is not shown on his DD Form 214.  Therefore, he is entitled to have his records corrected to show this foreign unit award.

7.  Evidence of record shows that the applicant participated in 3 campaigns during his service in the RVN.  Therefore, he is eligible for award of 3 bronze service stars to be affixed to his already-awarded Vietnam Service Medal. 

8.  Army Regulation 600-8-22 (Military Awards) states, in pertinent part, that the first oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Purple Heart.

BOARD VOTE:

__XXX __  __XXX__  __XXX__   GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  awarding the Purple Heart (First Oak Leaf Cluster) for wounds sustained in action against the enemy on 3 May 1968 and correcting the record to show this award;

	b.  awarding the applicant the AGCM (First Award) for the qualifying period of 11 July 1967 through 14 February 1969 and correcting the record to show this award;

	c.  authorizing the Republic of Vietnam Gallantry Cross with Palm Unit Citation and correcting the record to show this award; 

	d.  authorizing the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation and correcting the record to show this award; and

	e.  deleting the "Vietnam Service Medal" from his DD Form 214 and adding the "Vietnam Service Medal with 3 bronze service stars."



      ___        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)                                         AR20080011479



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ABCMR Record of Proceedings (cont)                                         AR20080011479



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