IN THE CASE OF:	  

		BOARD DATE:	  10 February 2009

		DOCKET NUMBER:  AR20080016293 


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 the Purple Heart (PH) and Combat Infantryman Badge (CIB) be added to his separation document (DD Form 214).

2.  The applicant states, in effect, that while serving in the Republic of Vietnam (RVN) on 26 May 1968, he received a shrapnel wound to the left leg while on a   search and destroy mission.  He was awarded the PH and CIB while in the hospital in Japan; however, he recently discovered these awards were not included on his DD Form 214. 

3.  The applicant provides a self-authored statement, his DD Form 214, and a letter of commendation 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 record shows he enlisted in the Regular Army and entered active duty on 13 November 1967, and was trained in and awarded military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman).

3.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he served in the RVN from 25 April 1968 through 28 July 1968.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company A, 1st Battalion, 6th Infantry Regiment, 198th Infantry Brigade, performing duties in MOS 11B (Infantryman) as an automatic rifleman and in MOS 11C as a gunner.  An entry in Item 38 also shows the applicant was a patient at the United States Army Hospital, Camp Zama, Japan, from 28 May through 30 July 1968.  It further shows he received "Excellent" conduct and efficiency ratings at each of his active duty assignments.

4.  Item 40 (Wounds) of the applicant's DA Form 20 contains a pencil entry indicating he sustained a wound to his left foot in May 1968.  Item 41 (Awards and Decorations) shows he earned the National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), RVN Campaign Medal (RVNCM) with Device (1960), and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  Item 41 does not include the PH or CIB in the list of authorized awards entered and Item 48 (Date of Audit) confirms the applicant last audited the DA Form 20 on 28 May 1969.

5.  The applicant's record is void of any orders or other documents that indicate he was ever recommended for or awarded the CIB or PH by proper authority while serving on active duty.  It is also void of any medical treatment records or documents indicating he was ever treated for a wound he received as a result of enemy action.

6.  On 12 November 1969, the applicant was honorably released from active duty (REFRAD) and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  During his tenure of service he completed 2 years of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued at the time shows he earned the NDSM, VSM, RVNCM with Device (1960), and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  The PH and CIB are not included in the list of awards contained in Item 24 and the applicant authenticated the DD Form 214 with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his REFRAD.

7.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant's name was not included on this list.  Additionally, review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for the PH or CIB pertaining to the applicant.

8.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to support award of the PH there must be evidence showing that the wound for which the award is being made was received as a result of enemy action, that it was treated by medical personnel, and a record of this treatment must have been made a matter of official record.  

9.  Chapter 8 of the awards regulation contains guidance on the CIB and provides, in pertinent part, that there are basically three requirements for the CIB. These requirements are that the member hold and be serving in an infantry MOS; that he be assigned to an infantry unit of brigade, regimental or smaller size; and that he be present and participate with his qualifying infantry unit while it is engaged in active ground combat with the enemy.  Combat service and campaign participation alone does not qualify a member for the CIB.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was awarded the PH and CIB and that they should be added to the list of awards on his DD Form 214 was carefully considered.  However, there is insufficient evidence to support this claim. 

2.  By regulation, in order to support award of the PH, there must be evidence confirming that the wound for which the award is being made was received as a result of enemy action, that it required treatment by military medical personnel, and a record of this treatment must have been made a matter of official record.  The regulatory requirement to support award of the CIB includes not only that the member hold and served in an infantry MOS in a qualifying infantry unit, but also confirmation that the member was present and participated with his qualifying infantry unit while it was engaged in active ground combat with enemy forces.  

3.  The applicant's DA Form 20 contains entries in Item 38 that show he served in an infantry MOS in an infantry unit while in the RVN and that he was a patient in the hospital in Japan from 28 May through 30 July 1968.  Item 40 contains a pencil entry indicating he sustained a wound to his left foot in May 1968.  However, there is no documentary evidence of record or independent evidence provided by the applicant that confirms his presence and participation in active ground combat with his unit, that the wound to his left foot was sustained as a result of enemy action, or that his hospitalization in Japan was due to a combat-related wound.  The PH and CIB are not included in the list of awards contained in Item 41 of his DA Form 20, which would be expected had they been awarded, and the applicant last audited his DA Form 20 on 28 May 1969, almost a year after his departure from the RVN.

4.  The applicant's record is also void of any orders or other documents and he has failed to provide any that show he was ever recommended for or awarded the PH and the CIB by proper authority.  His name is not included on the Vietnam Casualty Roster, which is the official DA list of RVN battle casualties, and there are no PH or CIB orders in the ADCARS file.  As a result, the regulatory burden of proof necessary to support award of the PH and the CIB has not been satisfied in this case.

5.  Absent any evidence of record or independent documentary evidence provided by the applicant that corroborates his claim that he was awarded the PH and the CIB by proper authority, it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to support granting the requested relief.

6.  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.

7.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20080016293



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ABCMR Record of Proceedings (cont)                                         AR20080016293



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