IN THE CASE OF:	  

		BOARD DATE:	  18 FEBRUARY 2009

		DOCKET NUMBER:  AR20080018333 


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 award of the Combat Infantryman Badge (CIB) and the Purple Heart (PH) for a hand wound he received in combat.  

2.  The applicant states he was stationed in Vietnam from June 1971 to April 1972.  He states he was assigned to the "1st Cav Infantry" Division and performed many combat patrols.   

3.  The applicant provides photographs of him in Vietnam; his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); and two letters 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 enlisted in the Regular Army on 28 June 1971.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 11B (light weapons infantryman).  The highest grade he attained was specialist four, E-4.

3.  He was assigned to Vietnam on 9 December 1971 with Company D, 1st Battalion, 12th Cavalry, 1st Cavalry Division (Airmobile) in duty MOS 11B.  

4.  His DA Form 20 (Enlisted Qualification Record) does not list the CIB or the PH in item 41 (Awards and Decorations).

5.  There are no orders in the applicant's personnel records which show he was awarded the CIB or the PH.  His DA Form 20 does not list any wounds as a result of hostile action in item 40 (Wounds).  His name is not included on the Vietnam Casualty Roster.  

6.  The applicant departed Vietnam on 23 June 1972.  There is no evidence of record which shows he sustained a hand wound during combat in Vietnam.  

7.  The applicant's service personnel records contain a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 7 November 1972, which shows he was treated at the U.S. Ireland Army Hospital at Fort Knox, KY for minor abrasions on his knuckles.  This document shows he was allegedly assaulted in the barracks area on 11 October 1972.

8.  The applicant was discharged on 21 February 1973.  He completed 1 year, 3 months, and 13 days of active military service.  His DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal "with one campaign credit" (bronze service star), the Republic of Vietnam Campaign Medal with Device 1960, the Air Medal, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and the First Class Gunner Badge with Machine Gun Bar.

9.  The applicant provided a statement from a former fellow Soldier.  The individual stated he met the applicant during basic training at Fort Knox, KY and they attended advanced individual training together.  He and the applicant met 


several times in Vietnam.  He mentioned one occasion when he saw the applicant in the spring of 1972.  He stated the applicant had a bandage on his right hand and told him that he injured his hand when he jumped out of a chopper and landed on a punji stick.  

10.  The applicant submitted a statement from his former spouse.  She stated that she was married to the applicant from 1971 to 1985.  In 1972, she received a letter from the applicant with a photo enclosed.  In the letter, the applicant explained that the injury occurred when he jumped from the helicopter and landed on a punji stick.  The applicant indicated in the letter that he was treated at a set-up clinic then he was sent to the "rear" for 3 days to heal.  

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the CIB 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.  Additionally Appendix V of USARV 672-1 provides that during the Vietnam era the CIB was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11D, 11F, 11G, or 11H.

12.  Army Regulation 600-8-22 provides, in pertinent part, that the PH 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, and the medical treatment must have been made a matter of official record.  Paragraph 2-8b(2) states that for the purpose of considering an award of the PH, a “wound” is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.  The regulation states that the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant states, in effect, he was assigned to the 1st Cavalry Division and performed many combat patrols.

2.  The evidence of record shows the applicant was awarded MOS 11B and served in an infantry MOS with a cavalry unit during his tour in Vietnam.  



3.  The Military Awards regulation governing award of the CIB requires service in an infantry duty position in an infantry unit engaged in ground combat with the enemy.  There is insufficient evidence available which shows he was assigned to an infantry unit during combat in Vietnam.  Therefore, there is insufficient evidence to show that the applicant has met all of the requirements for award of the CIB.  

4.  The applicant states he received a hand wound during combat.  However, there is no evidence of record which shows he sustained a wound as a result of hostile action in Vietnam.  His service records contain a Statement of Medical Examination and Duty Status, prepared subsequent to his Vietnam tour, which shows he was treated for minor abrasions on his knuckles which he sustained as a result of an assault.  

5.  The applicant's name is not listed on the Vietnam Casualty Roster.

6.  By regulation, in order to award the PH it is necessary to establish that a Soldier was wounded in action, that the wound required treatment by medical personnel, and the treatment must have been made a matter of official record.  

7.  In the absence of any other corroborating evidence of record which shows the applicant was wounded or injured as a result of hostile action, there is insufficient evidence upon which to base award of the PH in this case.  

8.  The statements from the former fellow Soldier and the applicant's former spouse were carefully reviewed.  Regrettably, the photographs and statements alone are not sufficient to meet the regulatory burden of proof necessary to support award of the PH 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 for correction of the records of the individual concerned.




      _______ _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)                                         AR20080018333



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ABCMR Record of Proceedings (cont)                                         AR20080018333



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