IN THE CASE OF:	  

		BOARD DATE:	  15 January 2009

		DOCKET NUMBER:  AR20080016913 


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 he was wounded in the hand by shrapnel while serving in Vietnam and treated in the field.  At that time a Purple Heart seemed like the last thing he wanted, but now he wants it to leave to his kids.  He was loaned to an infantry unit to clear the jungle to build their bases with his bulldozer and often saw combat throughout his tour in Vietnam.  He was also a door gunner for a while and rode shotgun on convoys.  He flattened the jungle and help set up perimeters for infantry minefields and booby-traps.  He volunteered to replace the wounded or killed in a mountain pass near Qui Nhon, Vietnam.  At the time of his discharge he did not think it would make a difference to him to have the awards.  

3.  In support of his application, the applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

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 30 November 1966, for 3 years.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 62B (Engineer Equipment Repairman).  He was later awarded MOS 62E, Construction Machine Operator, in 1968.  His records do not show he was awarded an infantry MOS or served with an infantry unit during his period of service.

3.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows he served in his awarded MOS of 62E as an Engineer Equipment Operator during his tenure in Vietnam and as a Construction Machine Operator throughout his military career.  He served in Vietnam from 18 August 1967 through 22 June 1968, with the 16th Engineer Detachment.

4.  The applicant was honorably released from active duty in pay grade E-5 on 24 September 1968, under the provisions of Army Regulation 635-200, by reason of hardship.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was wounded in the hand by shrapnel and treated in field while serving 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.  

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 62B or 62E 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 an engineer detachment and performed duties of an Engineer Equipment Operator.  

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)                                         AR20080016913



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ABCMR Record of Proceedings (cont)                                         AR20080016913


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