IN THE CASE OF:	  

		BOARD DATE:	       18 December 2008

		DOCKET NUMBER:  AR20080012526 


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 earlier request for award of the Purple Heart and the Combat Infantryman Badge.

2.  The applicant states, in effect, that by law the reasonable doubt doctrine is applicable even in the absence of official records and that any doubt should be resolved in his favor.

3.  The applicant provides a self-authored statement, dated 8 July 2008, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  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 AR20080004979, on 3 June 2008.

2.  The applicant submitted a self-authored statement, dated 8 July 2008, in which he presents a new argument, which was not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.



3.  The applicant's record shows he was inducted into the Army of the United States on 5 June 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He was honorably separated and transferred to the U.S. Army Reserve Control Group (Annual Training) on 4 June 1969.  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

4.  The applicant's records also show he served in the Republic of Vietnam from 4 November 1967 to 30 October 1968.  He was assigned to Company D, 51st Infantry. 

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Credits Awarded or Authorized) of the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), as amended, shows he was awarded the National Defense Service Medal, the Vietnam Service Medal with a silver service star, the Republic of Vietnam Campaign Medal with 1960-Device, two Overseas Service Bars, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14 Rifle), the 1st Class Gunner Badge with Rifle and Machinegun Bar (M-16 and M-60), the Good Conduct Medal, the Meritorious Unit Commendation, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  Item 24 does not show award of the Purple Heart and/or the Combat Infantryman Badge. 

6.  There are no orders in the applicant's available personnel records which show that he was awarded the Purple Heart and/or the Combat Infantryman Badge. 

7.  The applicant's DA Form 20 (Enlisted Qualification Record) does not show an entry in item 40 (Wounds) and the Purple Heart is also not shown as an authorized award in item 41 (Awards and Decorations).  The Combat Infantryman Badge is shown in item 41; however, it does not reflect a valid authority for the award.

8.  The applicant's name does not appear on the Vietnam Casualty Roster for a wound received as a result of hostile action. 

9.  In his self-authored statement, dated 8 July 2008, the applicant states the following:

	a.  The Board should have the medical records that show he was medically evacuated from Dak-To to a nearby Pleiku Army Hospital in December 1967 and that his medical documents will show that he received shrapnel to the right side of his face/eye and that he wore an eye patch for 30 days; 
	b.  His military records show he was presented the Combat Infantryman Badge and he should not be denied the award just because an administrative error occurred on his DA Form 20.  He believes that any doubt regarding this award should be resolved in his favor; and 

	c.  “When, after careful consideration of procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, the doubt should be resolved in favor of the claimant.  Reasonable doubt means an approximate balance between positive and negative evidence which does not satisfactorily prove or disprove the claim.  The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat or similar strenuous conditions and is consistent with the probable results of such hardships.”

10.  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 military medical personnel, and the medical treatment must have been made a matter of official record.  

11.  Army Regulation 600-8-22 provides for award of the Combat Infantryman Badge.  This regulation states that there are basically three requirements for award of the Combat Infantryman Badge.  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.  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.  The applicant's argument with respect to the reasonable doubt doctrine has been carefully considered; however, the burden of proof remains upon the applicant to establish his entitlement to the requested awards by preponderance of the evidence.  The applicant did not provide such evidence. 
2.  With respect to award of the Purple Heart, the Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration, rather he or she is entitled to it upon meeting specific criteria.  In this case, there are no general orders that show the applicant was awarded the Purple Heart, the applicant's name is not listed on the Vietnam Casualty Roster, and there is no evidence in his service personnel records which shows that he was wounded or injured as a result of hostile action or treated for such wounds.  Furthermore, there are no medical records that show the applicant was wounded or injured as a result of hostile action or that he was treated for such wound or injury.

3.  Absent evidence which conclusively shows that the applicant sustained wounds or injuries as a result of hostile action, that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is insufficient basis for awarding the Purple Heart to the applicant in this case.

4.  With respect to award of the Combat Infantryman Badge, the applicant's infantry MOS and assignment to an infantry unit during his service in Vietnam are not in question.  However, there is no evidence in the available records and the applicant did not provide any evidence that shows he was engaged in active ground combat while assigned to an infantry unit of brigade, regimental, or smaller size during any period such unit was engaged in active ground combat.  As a result, the applicant does not meet the criteria for award of the Combat Infantryman Badge.

5.  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.  Each case is considered on the merits to determine whether the preponderance of the evidence shows that an error or injustice exists.  The applicant’s argument about the “reasonable doubt doctrine” is without merit and not applicable to the Board’s deliberations.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080004979, on 3 June 2008.



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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)                                         AR20080012526



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ABCMR Record of Proceedings (cont)                                         AR20080012526



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