IN THE CASE OF:	  

		BOARD DATE:	        18 DECEMBER 2008

		DOCKET NUMBER:  AR20080015425 


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 reconsideration be given to correcting his military records to show the award of the Purple Heart and to award him the Combat Infantryman Badge.

2.  The applicant essentially states that he has documentation for the Purple Heart he received while serving in the Vietnam War as well as a letter from the Department of Veterans Affairs (DVA) confirming receipt of his Purple Heart.  He also requests a redetermination regarding the decision to deny him the Combat Infantryman Badge, as one can see from his records that he served in Vietnam and that his military occupational specialty (MOS) was 11B (Light Weapons Infantryman).  He further contends that just because he was assigned to a transportation battalion during his assignment in Vietnam does not mean he did not receive and return fire, and gives several examples of what he believes is ample evidence that he should be awarded the Combat Infantryman Badge.  

3.  The applicant provides a self-authored letter, dated 4 August 2008, an unauthenticated DA Form 1577 (Authorization for Issuance of Awards), dated 
14 June 1985, and a letter, dated 5 March 2008, from the DVA in support of this application.

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 AR20070009245, on 8 November 2007.

2.  The applicant provided an unauthenticated DA Form 1577, dated 14 June 1985, which states that he is authorized the Purple Heart.  He also provided a letter, dated 5 March 2008, from the DVA which essentially shows that the DVA confirmed his receipt of the Purple Heart and placed him in Enrollment Priority Group 3.  This is new evidence that will be considered by the Board.

3.  The applicant enlisted on 18 March 1969 for a period of 3 years.  He was awarded military occupational specialty (MOS) 11B (light weapons infantryman). He arrived in Vietnam on 7 October 1971.  He served in MOS 11B assigned to Headquarters and Headquarters Company, 520th Transportation Battalion in Vietnam from 18 October 1971 through 3 March 1972.  On 4 March 1972, the applicant was released from active duty.

4.  The applicant’s DD Form 214 shows the National Defense Service Medal, the Vietnam Service Medal with two bronze service stars, and the Republic of Vietnam Campaign Medal with Device (1960) as authorized awards.   

5.  There is no evidence in the available records which show that the applicant was awarded the Purple Heart or was wounded as a result of hostile action in Vietnam.

6.  The applicant's DA Form 20 (Enlisted Qualification Record) does not show entitlement to the Purple Heart and item 40 (Wounds) on his DA Form 20 is blank.  The applicant's name does not appear on the Vietnam Casualty Roster.

7.  On 3 March 1972, the applicant underwent a separation physical examination which makes no mention of any injuries or wounds sustained as a result of hostile action in Vietnam.

8.  A search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System (ADCARS), a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era, failed to produce any orders awarding him the Purple Heart.

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

10.  Army Regulation 600-8-22 also 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.  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 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.

11.  U.S. Army Vietnam Regulation Number 672-1 (Awards and Decorations) specifically governed award of the Combat Infantryman Badge to Army forces operating in South Vietnam.  This regulation specifically stated that criteria for award of the Combat Infantryman Badge identified the man who trained, lived, and fought as an infantryman and the Combat Infantryman Badge is the unique award established to recognize the infantryman and only the infantryman for his service.  Further, "the Combat Infantryman Badge is not an award for being shot at or for undergoing the hazards of day to day combat."  This regulation also stated the Combat Infantryman Badge 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.

12.  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 reconsideration should be given to correcting his military records to show the award of the Purple Heart and to award him the Combat Infantryman Badge.

2.  The evidence provided by the applicant regarding the Purple Heart was carefully considered.  However, the DA Form 1577, a copy of which was in his military records, is not authenticated, and is not corroborated by evidence which is required by regulation.  By regulation, 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 records of medical treatment must have been made a matter of official Army records.  There is no evidence in the applicant's military records which shows that he was wounded or injured as a result of hostile action.  There is also no evidence that he was treated for wounds or injuries sustained as a result of hostile action, and no evidence of medical treatment for wounds or injuries being made a matter of official record.  There are no orders in the applicant's military records, and the applicant failed to provide orders which awarded him the Purple Heart.  A search of the ADCARS also failed to produce any orders awarding him the Purple Heart.  As a result, the unauthenticated DA Form 1577 does not approach the threshold of proving by a preponderance of the evidence that he was awarded the Purple Heart or entitled to award of the Purple Heart.

3.  While the DVA may have placed the applicant in a higher enrollment priority group, presumably because the applicant forwarded a copy of the unauthenticated DA Form 1577 to them, the DVA letter is not relevant in this case.  The DVA has neither the responsibility nor the authority to determine if a member is entitled to award of the Purple Heart.

4.  While the applicant possessed and served in an infantry MOS during his tour in Vietnam, he did so with the 520th Transportation Battalion, not an infantry unit of brigade, regimental, or smaller size as required by Army regulations.  Notwithstanding the applicant's contention that he should not be denied the Combat Infantryman Badge because he was assigned to a transportation battalion, the regulatory guidance clearly states that an infantryman must be assigned to an infantry unit of brigade, regimental, or smaller size at a time when the unit is engaged in combat, and the member must have been personally present and actively participating in such ground combat.  As the applicant was not assigned to an infantry unit during his tour in Vietnam, whether or not he actually engaged in combat is moot.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.


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 AR20070009245, dated 8 November 2007.




      _______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)                                         AR20080015425



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ABCMR Record of Proceedings (cont)                                         AR20080015425



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