IN THE CASE OF:	  

		BOARD DATE:	  5 May 2009

		DOCKET NUMBER:  AR20090001090 


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 correction of his military records to show award of the Purple Heart and the Combat Infantryman Badge.  In addition, the applicant requests that his military records be corrected to show his correct rank.

2.  The applicant states that on 5 May 1968 he was a gunner in a convoy when North Vietnamese Regulars attacked the convoy.  During the firefight, he incurred a head wound from a sniper round that penetrated then circled around and exited his helmet, grazing the back of his head and scalp.  

3.  The applicant states that he was treated for his wound by the company medic and transported to a hospital where he was treated and released.  The applicant states that he was later informed that his name was scratched from the list for award of the Purple Heart.

4.  The applicant states, in effect, that he retired from the U.S. Marine Corps Reserve (USMCR) and that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with the period ending 30 October 1968 should be corrected to show his correct pay grade of E-9.

5.  The applicant provides:

	a.  his DD Form 214;

	b.  a photograph of the applicant being presented a gold helmet;

	c.  a photograph of the applicant behind an M-60 machine wearing a bullet proof vest and two ammunition belts across his shoulders;

	d.  a United States Marine Corps Discharge Certificate, dated 11 May 1980;

	e.  a letter from a Pulmonary/Critical Care Fellow, Medical University of South Carolina, dated 26 October 2005;

	f.  a letter from the National Personnel Records Center, dated 29 May 2008;

	g.  two statements from a former fellow Soldier, dated 30 October 2008;

	h.  a Department of Veterans Affairs (VA) Form 21-4138 (Statement of Claim), dated 11 November 2008; and 

	i.  copies of a VA Service-Connected identification card and a Department of Defense (DOD)/Uniformed Services Identification and Privilege Card.

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 7 November 1966 and successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty (MOS) 64B (Heavy Truck Driver).

3.  The applicant arrived in Vietnam and was assigned to the 64th Transportation Company on or about 7 February 1968 where he performed duties as a heavy truck driver.  He was promoted to the rank and grade of specialist five (SP5)/E-5 on 13 July 1968.


4.  The applicant departed Vietnam on or about 28 October 1968.  He was honorably released from active duty on 30 October 1968 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  The highest rank/grade he attained during this period of active service was SP5/E-5.  

5.  Item 39 (Identifying body marks, scars, tattoos) of the applicant's Standard Form 88 (Report of Medical Examination), dated 30 October 1968, shows right arm tattoo "HEART."  

6.  A Standard Form 89 (Report of Medical History), dated 30 October 1968, shows that the applicant was being separated and that he indicated that he was in good health.  Item 33 (Have you ever had any illness or injury other than those already noted?) shows that he indicated "NO."

7.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Authorized or Awarded) of the applicant's DD Form 214 for the ending period 30 October 1968 does not show award of the Purple Heart or the Combat Infantryman Badge. 

8.  There are no general orders in the applicant’s service personnel records that show he was awarded the Purple Heart.  There also is no evidence that shows he was treated for wounds as a result of hostile action in Vietnam.  The applicant's name is not listed on the Vietnam casualty roster.

9.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not show the applicant was wounded.  Item 41 (Awards and Decorations) does not show award of the Purple Heart or the Combat Infantryman Badge.

10.  The applicant's Army medical treatment records are unavailable.

11.  The applicant provides a photograph of himself being presented a gold helmet at a ceremony with the 64th Transportation Company.

12.  The applicant provides a statement from a former fellow Soldier, dated 
30 October 2008.  The author stated that he and the applicant served in Vietnam together.  Word came to him that the applicant was on convoy and was hit by enemy sniper fire.  The author further stated that he visited the applicant in the hospital and the applicant showed him the helmet with the bullet hole in it and the head wound he received from the sniper.  When it came time to receiving commendations for valor the applicant's name was scratched from the list.

13.  The applicant provides a DOD/Uniformed Services Identification and Privilege Card that shows his status and grade as a retired disabled veteran permanent (DAVPRM)/E-9.

14.  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, and the medical treatment must have been made a matter of official record.

15.  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.  There are basically three requirements for award of the Combat Infantryman Badge.  The Soldier must be an infantryman satisfactorily performing infantry duties, must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and must actively participate in such ground combat.  Campaign or battle credit alone is not sufficient for award of the Combat Infantryman Badge.  

16.  Army Regulation 635-5 (Separation Documents) in effect at that time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized preparation of the DD Form 214.  In pertinent part, it stated the DD Form 214 was a synopsis of the Soldier’s most recent period of continuous active duty.  It provided a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.

DISCUSSION AND CONCLUSIONS:

1.  There are no orders in the applicant's service personnel records that show he was awarded the Purple Heart.  There is no evidence in the available records and the applicant has not provided evidence that shows he received any injury that was a result of hostile action.  Unfortunately, the statements from the former fellow Soldier did not mention that he was present at the time of the actual incident and photographs provided by the applicant alone are insufficient evidence to show he is authorized the award.  In view of the foregoing, there is insufficient evidence that would warrant granting the applicant's request.

2.  Evidence of record shows that the applicant was assigned to a Transportation Company and his principal duty while in Vietnam was heavy truck driver.  The three criteria for award of the Combat Infantryman Badge are to be assigned to an infantry unit, perform infantry duties, and hold an infantry specialty.  It is acknowledged that the applicant may have functioned as an infantryman at times; however, the evidence of record shows that while serving in Vietnam his primary specialty was 64B Heavy Truck Driver which makes him ineligible for award of the Combat Infantryman Badge.

3.  The applicant contends that his DD Form 214 with the period ending 30 April 1984 should be corrected to show his pay grade of E-9.  Evidence of record shows that the applicant retired from USMCR in the pay grade of E-9.  However, in accordance with Army Regulation 635-5, the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  His service in the USMCR was performed outside the period covered by his DD Form 214.  There is insufficient evidence on which to change the pay grade on the applicant's DD Form 214.

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)                                         AR20090001090



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ABCMR Record of Proceedings (cont)                                         AR20090001090



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