IN THE CASE OF:	  

		BOARD DATE:	  18 August 2009

		DOCKET NUMBER:  AR20090002761 


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 Combat Infantryman Badge (CIB) and to have his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) corrected to show award of the CIB.

2.  The applicant states that the CIB was never added to his DD Form 214 when he was discharged from the Army. 

3.  The applicant provides a copy of his DD Form 214 with a separation date of 2 August 1967.

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 inducted into the Army of the United States on 2 August 1965.  He successfully completed basic and advanced individual training.  He was awarded military occupational specialty (MOS) 11H (Infantry Direct Fire Crewman).  The highest rank he attained during his enlistment period was private first class/pay grade E-3.

3.  Item 31 (Foreign Service) of the applicant's DA Form 20 (Enlisted Qualification Record), dated 22 November 1966, shows from on or about 16 December 1965 to 13 December 1966 he was credited with a foreign service tour in the Republic of Vietnam.  He served as a rifleman.

4.  On 9 March 1967, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being absent without leave on 28 February 1967 and for damaging a government vehicle on 1 March 1967.

5.  On 2 August 1967, the applicant was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training).  The DD Form 214 issued to the applicant shows he completed a total of 2 years of active Federal service with 1 year and 3 months of foreign service in the Republic of Vietnam.

6.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 for the period ending 2 August 1967 does not show award of the CIB.  This form does show the applicant was awarded the Purple Heart.

7.  Item 38 (Record of Assignments) of the applicant's DA Form 20, dated 22 November 1966, shows he was assigned to Company D, 2nd Battalion, 12th Calvary, 1st Calvary Division, from on or about 27 December 1965 to on or about 22 January 1967 with duty in the Republic of Vietnam.  His second assignment was to Company B, 5th Battalion, 6th Infantry, from on or about 23 January 1967 to on or about 2 August 1967 with duty at Fort Hood, TX.  For all unit assignments, the applicant received "excellent" conduct and efficiency ratings from his unit commanders.  There are no records of courts-martial convictions within the applicant's available military personnel record.

8.  Item 40 (Wounds) of the applicant's DA Form 20 shows the entry for a gunshot wound to his left knee on 12 May 1966.

9.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not show award of the CIB.

10.  There are no orders awarding the applicant the CIB in his available military personnel record.

11.  The applicant's records show that he is entitled to additional awards which he did not request and are not listed on his DD Form 214.

12.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This document shows that the unit to which the applicant was assigned was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 9 August 1965 to 9 May 1969 by publication of Department of the Army General Order Number 69, dated 1969.

13.  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 personnel 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.

14.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) governed the awards program in the Army theater of operations during the Vietnam conflict.  This regulation provided that the CIB was authorized for award to infantry personnel who were members of infantry platoons and squads in armored cavalry squadrons and regiments.  Additionally, appendix V of U.S. Army Vietnam Regulation 672-1 provided 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.

15.  Army Regulation 600-8-22 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, to include injury caused by an enemy bullet, shrapnel or other projectile created by enemy action, the wound must have required treatment by military medical personnel, and the medical treatment must have been made a matter of official record.

16.  U.S. Army Vietnam Regulation 672-1 provided, in pertinent part, for award of the Purple Heart.  This regulation stated that authority to award the Purple Heart was delegated to hospital commanders.  Further, it directed that all personnel treated and released within 24 hours will be awarded the Purple Heart by the organization to which the individual was assigned.  Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam would be awarded the Purple Heart directly by the hospital commander rendering treatment.

17.  Army Regulation 672-5-1 (Awards), in effect at the time, provided that the Army Good Conduct Medal was awarded to individuals who completed a qualified period of active duty enlisted service.  This period was 3 years except in those cases when the period for the first award ended with the termination of a period of Federal military service.  The enlisted person must have had all "excellent" conduct and efficiency ratings and no convictions by a court-martial.  Ratings of "unknown" for portions of the period under consideration were not disqualifying.  Service and efficiency ratings based upon academic proficiency of at least "good" rendered subsequent to 22 November 1955 were not disqualifying.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his record should be corrected to show award of the CIB.

2.  The applicant was an infantryman assigned to a cavalry unit serving as a rifleman in the Republic of Vietnam when he was awarded the Purple Heart for a gunshot wound to the leg.  Based on his award of the Purple Heart, any reasonable doubt as to whether or not he received his wounds while engaged in ground combat should be resolved in his favor.  As such, the preponderance of evidence shows that the applicant met the criteria for award of the CIB and it would be appropriate to now award him the CIB and to add that decoration to his DD Form 214.

3.  The applicant had "excellent" conduct and efficiency ratings throughout his period of service and there is no evidence showing disqualification for the Army Good Conduct Medal.  As such, it would appear that the applicant's nonjudicial punishment did not preclude the applicant from receiving the Army Good Conduct Medal.  As such, the applicant is entitled to award of the Army Good Conduct Medal based on his termination of his first enlistment period from 2 August 1965 to 2 August 1967.

4.  Records show the applicant's unit in Vietnam was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation during his assignment to that unit.  Therefore, he is entitled to correction of his records to show award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation.



BOARD VOTE:

___X___  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a. awarding him the CIB;

	b. awarding him the Army Good Conduct Medal for the period of service from 2 August 1965 to 2 August 1967; and

	c. adding to his DD Form 214, dated 2 August 1967, the Army Good Conduct Medal, the Combat Infantryman Badge, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.



      ____________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)                                         AR20090002761



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ABCMR Record of Proceedings (cont)                                         AR20090002761



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