IN THE CASE OF:	  

		BOARD DATE:	        23 December 2008

		DOCKET NUMBER:  AR20080012486 


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:

	a.  Correction of his records to show award of the Purple Heart and the Combat Infantryman Badge; and

	b.  Reconsideration of his previous request to correct his rank from Private First Class (PFC/E-3) to Specialist Four (SP4/E-4).

2.  The applicant states, in effect, that his rank was SP4 when he was separated from the military.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with the period ending 11 September 1969 shows the incorrect rank of PFC.  He further states that he fought for his country and deserves the Purple Heart and the Combat Infantryman Badge he should have been awarded 40 years ago. 

3.  The applicant provides a Department of Veterans Affairs Rating Decision, dated 22 April 2005.

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 AR2004099972, on 13 July 2004.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  The applicant’s request for reconsideration of his rank is untimely and will not be further considered.

3.  The applicant was inducted into the Army on 12 September 1967 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 36K (Wireman).

4.  The applicant arrived in Vietnam and was assigned to B Battery, 3rd Battalion, 6th Artillery on or about 25 February 1968, where he performed duties as a wireman, switchboard operator, and artillery recorder.  He departed Vietnam on or about 18 February 1969.  

5.  Item 39 (Identifying body marks, scars, tattoos) of the applicant's Standard Form 88 (Report of Medical Examination), dated 12 August 1969, shows no abnormalities other a tattoo on left forearm.  

6.  A Standard Form 89 (Report of Medical History), dated 12 August 1969, shows that the applicant was being separated and that he stated, "In good health."  Item 33 (Have you ever had any illness or injury other than those already noted?) shows that he indicated "no."

7.  On 11 September 1969, the applicant was honorably released from active duty after completing 2 years of creditable active service.

8.  The applicant's DD Form 214 with the period ending 11 September 1969 shows he was awarded National Defense Service Medal, the Vietnam Campaign Medal with Device (1960), the Vietnam Service Medal, and the Army Good Conduct Medal.
9.  There are no general orders in the applicant’s service personnel records that show he was awarded the Purple Heart.  There also is no evidence in his service personnel records that shows that he was wounded or treated for wounds as a result of hostile action in Vietnam.  The applicant's name is not listed on the Vietnam Casualty Roster.  

10.  There are no orders in the applicant's service personnel records awarding him the Combat Infantryman Badge.

11.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not show the applicant was wounded and item 41 (Awards and Decorations) does not show award of the Purple Heart or Combat Infantryman Badge.  

12.  The applicant's Army Medical Treatment Records are unavailable.

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, and the medical treatment must have been made a matter of official record.  This regulation also provides that there is no statute of limitations on request for award of the Purple Heart.

14.  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.  There are basically three requirements for award of the Combat Infantryman Badge.  The Soldier must be an infantryman satisfactorily performing infantry duties, must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and must actively participate in such ground combat.  Campaign or battle credit alone is not sufficient for award of the Combat Infantryman Badge.  The Awards Branch of the U.S. Army Human Resources 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.

DISCUSSION AND CONCLUSIONS:

1.  There are no orders in the applicant's service personnel records that show he was awarded the Purple Heart.  There is no evidence in the available records and the applicant has not provided evidence that shows his injury was a result of hostile action.  
2.  Regrettably, lacking any corroborating evidence of record showing the applicant was treated for a wound/injury that was the direct result of or caused by enemy action, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.

3.  Evidence of record shows that the applicant was assigned to an Artillery Battery and his principal duties while in Vietnam were wireman, switchboard operator, and artillery recorder.  

4.  However, the three criteria for award of the Combat Infantryman Badge are to be assigned to an infantry unit, perform infantry duties, and hold an infantry specialty.  It is acknowledged that the applicant may have functioned as an infantryman; however, the evidence of record shows that while serving in Vietnam his primary specialty was 36K Wireman which makes him ineligible for award of the Combat Infantryman Badge.

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 as a basis for correction of the records of the individual concerned.



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      _______ _   _______   ___
               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)                                         AR20080012486





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ABCMR Record of Proceedings (cont)                                         AR20080012486



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