IN THE CASE OF:	  

		BOARD DATE:	  23 December 2008

		DOCKET NUMBER:  AR20080015428 


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, award of the Purple Heart and the Combat Infantryman Badge. 

2.  The applicant states, in effect, that in order for him to be buried at Arlington National Cemetery he must have served in combat and earned the Purple Heart. He also states that he served as an infantry Soldier in Vietnam and suffered hearing loss due to combat.  He believes that since the VA (Department of Veterans Affairs) has seen fit to agree that he served as a combat Soldier and his hearing was harmed, he should be granted this honest request.

3.  The applicant provides no additional documentation in support of his application. 

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.  The applicant's records show he enlisted in the Regular Army in pay grade
E-1 on 13 May 1968 for 3 years.  His DA Form 20 (Enlisted Qualification Record), Item 27 (Military Education), shows he completed the Field Radio Mechanic course for military occupational specialty (MOS) 31B (Field Radio Mechanic) in 1968.  Item 22 (MOS) shows he was awarded MOS 31B on 18 September 1968.  Item 22 does not show he was awarded an infantry MOS during his period of service.

3.  Item 38 (Record of Assignments) of his DA Form 20 shows he served in his awarded MOS of 31B as a Field Radio Mechanic and Senior Radio Mechanic throughout his service, including his tenure in Vietnam.  While in Vietnam, he served with the 58th Signal Company, 3rd Brigade, 82nd Airborne Division from 28 June 1969 through 28 November 1969.  He was then reassigned within theater and served with Company C, 1st Battalion, 50th Infantry from
29 November 1969 through 12 August 1970.  On 13 August 1970, upon completion of his tour in Vietnam, he was reassigned to the United States Army, Europe (Germany).

4.  The applicant was honorably released from active duty in pay grade E-5 on 6 May 1971 at the expiration of his term of service.  He was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).  

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, and the Sharpshooter Marksmanship Qualification Badge [with Rifle Bar].  The Purple Heart and Combat Infantryman Badge are not shown on his DD Form 214.

6.  There are no orders in the applicant’s service personnel records that show he was awarded the Purple Heart or the Combat Infantryman Badge.  There is also no evidence in his records that shows he was wounded or injured or treated for wounds or injuries as a result of hostile action.  His DA Form 20 does not show any entry in Item 40 (Wounds).  His DA Form 20 also does not list the Purple Heart or Combat Infantryman Badge in Item 41 (Awards and Decorations).  

7.  The Vietnam Casualty List was reviewed to determine if the applicant had been wounded in action while he served in Vietnam.  The applicant's name is not shown in this list.

8.  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.

9.  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.  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.

10.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating or compensation does not establish eligibility for an award of the Purple Heart or Combat Infantryman Badge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he suffered a hearing loss due to his involvement in combat with the enemy in Vietnam.  However, there is no record to show he was injured as a result of participation in direct or indirect combat operations while serving in Vietnam.  There is also no record that shows he was treated by medical personnel or that the treatment was made a matter of official record.  The evidence does not show he was ever recommended for or awarded the Purple Heart by proper authority.  

2.  By regulation, in order to support award of the Purple Heart, there must be evidence confirming that the wound or injury for which the award is being made was received as a direct result of or was caused by enemy action, that the wound or injury was treated by medical personnel, and a record of this treatment must have been made a matter of official record.  Therefore, absent corroborating evidence confirming the applicant's account of how he received his injury (chain of command supporting letters, etc.), the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.
3.  To be entitled to award of the Combat Infantryman Badge, the evidence must show that an applicant held and served in an infantry MOS while assigned or attached to an infantry unit of brigade, regimental or smaller size, and must have served in active ground combat while assigned or attached to this infantry unit.

4.  The evidence of record shows he completed training, was awarded, and served in MOS 31B throughout his military service and during his service in Vietnam.  There is no evidence he was awarded and/or served in an infantry MOS during his period in Vietnam or military service.  While serving in Vietnam, he was primarily assigned to a signal company and performed duties of a Senior Radio Mechanic.  Although he was assigned to an infantry unit during a period of his service in Vietnam, he performed duties in his awarded MOS of 31B, not in an infantry MOS.

5.  The evidence of record does not confirm, and he has not shown, that he was personally present and participated in active ground combat while assigned or attached to an infantry unit.  His records also do not show he received any awards for valor or achievement that would give an indication he was exposed to active ground combat against the enemy during his service in Vietnam.

6.  All Soldiers were provided basic combat skills training after they entered the Army.  This was provided to ensure that all Soldiers had the survival skills to perform basic infantry missions when the need arose.  Therefore, the exigencies of combat required non-infantry Soldiers to temporarily perform the basic infantry duties that all Soldiers were trained to do; however, it is not a basis for the award of the Combat Infantryman Badge.  Based on the available evidence, the applicant is not entitled to award of the Combat Infantryman Badge and to have it added to his DD Form 214.

7.  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.  

8.  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

__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.



      __________x____________
               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)                                         AR20080015428



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ABCMR Record of Proceedings (cont)                                         AR20080015428


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