IN THE CASE OF:	  

		BOARD DATE:	        23 JULY 2009

		DOCKET NUMBER:  AR20090004806 


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 Purple Heart, the Combat Infantryman Badge, and the Army Good Conduct Medal.

2.  The applicant states that he did not report his wound at the time because of the mass chaos going on.  He did not think it was that bad of a wound.

3.  The applicant provides a Department of Veterans Affairs (VA) rating decision in which the applicant was awarded a 10 percent disability rating for a fragment wound to his thigh which he had reported he received during a mortar attack in Vietnam and had been treated by himself and a medic.

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 military records show that he enlisted in the Regular Army (RA) on 30 December 1966, he was awarded military occupational specialties (MOS) of 11F (infantry operations and intelligence specialist) and 71B (clerk typist), and he was promoted to the rank/grade of specialist five (SP5)/E-5 on
25 April 1968.

3.  The applicant served in Vietnam from 13 July 1968 to 1 August 1969.  While in Vietnam, the applicant was assigned to Headquarters and Headquarters Company, 1st Air Cavalry Division.

4.  While in Vietnam, the applicant was awarded the Air Medal by Headquarters, 1st Cavalry Division (Airmobile), General Orders Number 8226, dated 3 July 1969, for meritorious achievement while participating in aerial flight in the Republic of Vietnam.

5.  The applicant was honorably released from active duty on 5 August 1969 and he was transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining Reserve obligation.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) does not show award of the Purple Heart, Combat Infantryman Badge, Army Good Conduct Medal, or Air Medal.

6.  The applicant's DA Form 20 (Enlisted Qualification Record), Item 40 (Wounds) is blank.  Item 38 (Record of Assignments) shows that the applicant received "excellent" conduct and efficiency ratings throughout his tenure of service.

7.  The applicant's military records do not contain orders awarding him the Purple Heart.  The applicant's military records do not contain any documents which show that the applicant received any disciplinary actions while on active duty.

8.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the pertinent identified campaign periods for which a bronze service star is authorized for wear on the Vietnam Service Medal.  The campaign periods which cover the time the applicant served in Vietnam include the Vietnam Counteroffensive, Phase V (1 July 1968 – 
1 November 1968); Vietnam Counteroffensive, Phase VI (2 November 1968 – 
22 February 1969); Tet 69 Counteroffensive, 1969 (23 February 1969 - 8 June 1969); and Vietnam Summer-Fall 1969 (9 June 1969 - 31 October 1969).




9.  Department of the Army General Order Number 8, dated 1974, awarded all units assigned to the United States Army, Vietnam from 8 February 1962 through 28 March 1973 the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

10.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for wounds 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.

11.  Army Regulation 600-8-22 also provides that the Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  A record of punishment is not automatically disqualifying.  However, at that time, a single efficiency rating of less than "excellent" was disqualifying.  Although there is no automatic entitlement to the Army Good Conduct Medal, disqualification must be justified.  Current practice requires that the commander provide written notice of nonfavorable consideration and permits the individual to respond.  At that time, nonfavorable consideration was normally noted on the DA Form 20.

12.  Army Regulation 600-8-22 further 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 Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11D, 11F, 11G, or 11H.

DISCUSSION AND CONCLUSIONS:

1.  Unfortunately, there is no evidence to corroborate the applicant's contention that he was wounded as a result of hostile action while in Vietnam.  Without medical records to show that he was treated for wounds incurred as a result of hostile action, there is insufficient evidence to award him the Purple Heart.

2.  The applicant's conduct and efficiency were consistently rated as "excellent" and there is no record of any disciplinary action taken against him.  Therefore, the applicant is entitled to the Army Good Conduct Medal (first award) for the 

period 30 December 1966 through 5 August 1969 and correction of his records to show this award.

3.  As for the Combat Infantryman Badge, although the applicant held a qualifying MOS for the CIB, he was not assigned to an infantry unit of brigade, regimental, or smaller size, and there is no evidence that he participated in active ground combat.  As such, the applicant is not entitled to the Combat Infantryman Badge.

4.  The applicant was awarded the Air Medal, which is not shown on his DD Form 214.  Therefore, it would be appropriate to correct his records to show this award.

5.  The applicant is also entitled to the Republic of Vietnam Gallantry Cross with Palm Unit Citation and four bronze service stars to be worn on his already-awarded Vietnam Service Medal based on his service in Vietnam.  Therefore, it would be appropriate to correct his records to show these awards.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

	a.  deleting from item 24 of the applicant's DD Form 214 the Vietnam Service Medal;

   b.  awarding the applicant the Army Good Conduct Medal for the period
30 December 1966 through 5 August 1969; and
   
   c.  adding to item 24 of the applicant's DD Form 214 the Army Good Conduct Medal, Air Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Vietnam Service Medal with four bronze service stars.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the Purple Heart and the Combat Infantryman Badge.



      _________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)                                         AR20090004806



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ABCMR Record of Proceedings (cont)                                         AR20090004806



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