IN THE CASE OF:	  

		BOARD DATE:	  23 June 2009

		DOCKET NUMBER:  AR20090001918 


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 that he be awarded the Combat Infantryman Badge (CIB) and the Purple Heart.

2.  The applicant states, in effect, that he served as an infantryman in Vietnam with various units and was never awarded the CIB because his units did not take care of him.  He also states that he was wounded in Vietnam during an ambush and received shrapnel wounds from a rocket propelled grenade (RPG) and he was medically evacuated to the 93rd Evacuation Hospital for treatment; however, he never received a Purple Heart. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a copy of his Honorable Discharge Certificate from the New Mexico Army National Guard (NMARNG); a photocopy of a photograph he claims to be himself at the hospital in Vietnam; and a copy of a DA Form 3349 (Medical Condition - Physical Profile Record), dated 13 May 1970.

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 was born on 18 May 1950 and was inducted into the Army of the United States in Albuquerque, New Mexico on 15 September 1969.  At the time of his induction he indicated that he had broken his left clavicle in 1968.

3.  He completed all of his training at Fort Ord, California and he was awarded military occupational specialty (MOS) 11B (light weapons infantryman).  He was transferred to Vietnam on 10 March 1970, for duty as a light weapons infantryman.  He was initially assigned to Company B, 4th Battalion, 12th Infantry Regiment, 199th Infantry Brigade for duty as a rifleman; however, 30 days later (23 April 1970), he was assigned to Company B, 7th Support Battalion for duty as a supply handler.

4.  On 13 May 1970, he was issued a permanent physical profile at the 93rd Evacuation Hospital related to an old fracture of the left clavicle with retainer pin which provided that he do no crawling, stooping, running, jumping, prolonged standing or marching, and no wearing of packs.  

5.  He was advanced to the pay grade of E-4 on 6 July 1970 and on
30 September 1970, he was transferred to Company D, 2nd Battalion, 506th Infantry Regiment for duty as a grenadier.  However, on 22 October 1970, he was transferred to Company A, 426th Supply and Services Company for duty as a rough terrain forklift and loader operator.

6.  He departed Vietnam on 4 February 1971 and was transferred to Fort Hood, Texas, where he served as a loader operator with Company A, 17th Engineer Battalion until he was honorably released from active duty (REFRAD) on 1 September 1971.  He had served 1 year, 11 months and 17 days of total active service and his DD Form 214 issued at the time of his REFRAD reflects that he was awarded the National Defense Service Medal, Vietnam Service Medal with two bronze service stars, Republic of Vietnam Campaign Medal, Good Conduct Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and 1st Class Gunner Badge with Machinegun Bar.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his statutory service obligation.

7.  At the time of the applicant's REFRAD, he underwent a medical physical examination where he indicated that he was in good health.  He listed his only injury as his left clavicle.

8.  The applicant enlisted in the NMARNG on 12 October 1979 and served through a series of continuous reenlistments.  He attained the rank of sergeant major on 1 August 2000.  He was honorably discharged from the NMARNG on 1 May 2001.  He had over 21 years of creditable service for retired pay purposes.

9.  A review of his records shows that a morning report search was conducted in November 1995 in response to a congressional inquiry that attempted to verify the applicant's claim for entitlement to the Purple Heart.  No records were found to substantiate his claim.

10.  A review of both the applicant's official personnel and medical records failed to show that he was ever wounded in action or that treatment for such wounds was made a matter of record.  Additionally, the applicant's name is not listed on the Vietnam Casualty Listing and there is no evidence to show that he ever engaged the enemy in combat while serving as an infantryman in an infantry unit.

11.  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.

12.  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 military occupational specialty (MOS).  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.  Although the sincerity of the applicant's claims are not in doubt, he has failed to show through the evidence of record and the evidence submitted with his application sufficient evidence to substantiate his claims.

2.  There simply is no evidence in his official records to support his contention that he was wounded/injured as a result of enemy action or that he even engaged the enemy while assigned to an infantry unit.


3.  It is also noted that his initial assignment to an infantry company lasted only 30 days and he was issued a permanent profile shortly after that which prohibited him from performing the majority of duties required of an infantryman.  His second assignment to an infantry company lasted only 2 weeks before he was again reassigned.

4.  Therefore, in the absence of sufficient evidence to show that he was wounded as a result of enemy action and that the treatment for those wounds was made a matter of record, there appears to be no basis to award him either the Purple Heart or the CIB.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during and after the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.



      __________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)                                         AR20090001918



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ABCMR Record of Proceedings (cont)                                         AR20090001918



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