IN THE CASE OF:	  

		BOARD DATE:	  18 February 2009

		DOCKET NUMBER:  AR20080019683 


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 the awards listed on his separation document (DD Form 214). 

2.  The applicant states, in effect, that he was awarded the PH for injuries he sustained in action and that he received the CIB for his participation in combat while serving in the Republic of Vietnam ((RVN).  He claims to have been injured by both enemy and friendly fire and to have been airlifted to a hospital in Japan, where he underwent seven surgeries.  He also indicates that he still suffers as a result of his RVN service, and that the PH and CIB should be annotated on his DD Form 214. 

3.  The applicant provides the following documents in support of his application:  DD Form 2860 (Application for Combat Related Special Compensation (CRSC)); Retirement Certificate; Self-Authored Letter; Third Party Letters; Medication Summary, dated 3 October 2008; Department of Veterans Affairs (VA) Benefits Documents, dated 13 September and 14 October 1971 and 13 March 1972; 
VA Rating Decision, dated 7 September 2007; Statements in Support of Claim (VA Forms 21-4138), dated 3 and 4 October 2007; DD Form 214; Enlisted Qualification Record (DA Form 20); Army Board for Corrections of Military Records (ABCMR) Letter, dated 25 September 2007; United States Army Physical Disability Agency (USADPA) Letter, dated 10 March 2006; FPM Supplement 296-31 (Verification of Military Retiree's Service in Non-Wartime Campaigns or Expeditions); ABCMR Letter, dated 25 September 2007; Letter of Appreciation; Diary Extracts; and Photographs.  
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 that after having completed 14 years, 10 months, and 13 days of prior active military service, the applicant reenlisted and entered his last period of active duty service on 24 June 1965.  He held and served in military occupational specialty 64C (Truck Master).

3.  The applicant's record shows he served in the RVN from 21 September 1965 through 30 May 1966.  His Official Military Personnel File does not include his original DA Form 20 and his record is void of any orders or other documents indicating he held or served in an infantry MOS or in an infantry unit while serving in the RVN.  His record is also void of any orders or other documents that indicate he was ever recommended for or awarded the PH or CIB by proper authority while serving on active duty.  His record is also void of any medical treatment records that show he was ever treated for a combat related wound or injury.  

4.  On 28 February 1971, the applicant was honorably released from active duty after completing a total of 20 years, 6 months, and 20 days of active military service.  The DD Form 214 issued at that time shows in Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) that he earned the following awards during the period covered by the DD Form 214 (24 June 1965 to 28 February 1971):  Vietnam Service Medal (VSM) with 2 bronze service stars; RVN Campaign Medal (RVNCM) with Device 1960; Army Good Conduct Medal (AGCM) 4th award; and Army Commendation Medal (ARCOM).  The PH and CIB are not included in the list of awards contained on the DD Form 214, and the applicant authenticated this document with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his retirement.

5.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty List.  The applicant's name is not included on this casualty list.

6.  The applicant provides a letter of support from his wife and two sons.  These individuals state their recollection of the applicant’s injuries during his military service and explain his post service mental and emotional state.  He also provides photographs of himself, which he claims were taken in Japan following his wounding in the RVN and VA documents which show his granted service connected disability ratings and monthly pay entitlements for Post Traumatic Stress Disorder (PTSD).

7.  The applicant also provides Pages 1 and 4 of his DA Form 20.  These documents indicate he held the primary MOS 64C and a secondary MOS of 63Z (Mechanic Maintenance Supervisor) in Item 22 (MOS).  Item 22 gives no indication that he held or served in an infantry (11) MOS at anytime during his active duty tenure.  Item 40 (Wounds) contains the pencil entry “wound-left hand-mine explosion” on 7 December 1965, and Item 41 (Awards and Decorations) includes the CIB but not the orders award authority.  

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 the PH is awarded to any member who has been wounded or killed in action. A wound is defined as an injury to any part of the body from an outside force or agent sustained under conditions defined by this regulation.  It stipulates that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that it required treatment by a medical officer and a record of this treatment must have been made a matter of official record. 

9.  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 military occupational specialty (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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he is entitled to the PH and CIB, and the supporting documents he provided, were carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By regulation, in order to support award of the PH, it is necessary to establish that the wound for which the award is being made was received as a direct result of or was caused by enemy action, that the wound was treated by military medical personnel and a record of this treatment must have been made a matter of official record.  Although the DA Form 20 extract provided by the applicant contains an entry in Item 40 that indicates he was wounded in action, his original DA Form 20 is not on file in his OMPF and there is no evidence of record to corroborate this entry, or to show that he was ever wounded in action.  His record is void of any orders or other documents that show he was ever recommended for or awarded the PH by proper authority while serving on active duty, and there are no medical treatment records on file that show he was ever treated for a combat related wound or injury as a result of enemy action.  

3.  Further, the PH is not included in the list of awards contained on the applicant's DD Form 214, which he authenticated with his signature on the date of his separation.  In effect, his signature was his verification that the information contained on the separation document, to include the list of awards, was correct at the time the DD Form 214 was prepared and issued and absent any evidence of record to the contrary, there is a presumption of regularity attached to the information contained on this document.  Further, his name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  Therefore, absent any evidence of record to corroborate the information provided by the applicant, or any evidence of record that confirms he was wounded as a result of enemy action, the regulatory burden of proof necessary to support award of the Ph has not been satisfied in this case. 

4.  The applicant’s claim of entitlement to the CIB was also carefully considered.  However, in order to support award of the CIB, there must be evidence that the member held an infantry MOS, served in a qualifying infantry unit of brigade, regimental or smaller size, and that he was present and participated with that unit at a time when it was engaged in active ground combat with enemy forces.  

5.  The evidence of record in this case shows the applicant held and served in the primary MOS of 64C and that he held the secondary MOS of 63Z.  There is no evidence of record that shows he ever held or served in an infantry MOS, or that he was assigned to or served with a qualifying infantry unit during his RVN tour, or that he was present and participated with a qualifying infantry unit while it was engaged in active ground combat during his RVN tour.  Therefore, notwithstanding the CIB entry on the DA Form 20 extract provided by the applicant, absent any evidence of record confirming he met the eligibility requirements necessary to support award of the CIB or any orders or other documents confirming he was ever awarded the CIB by proper authority while serving on active duty, there is also insufficient evidentiary basis to support granting this portion of the requested relief. 

6.  The applicant and all others concerned should know that this action related to award of the PH and CIB in no way diminishes the sacrifices made by him 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)                                         AR20080019683



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ABCMR Record of Proceedings (cont)                                         AR20080019683


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