IN THE CASE OF:	  

		BOARD DATE: 	        1 July 2009

		DOCKET NUMBER:  AR20090004859 


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, through his Member of Congress (MC), reconsideration of his previous request for award of the Purple Heart and to show that he served in Vietnam for about 12 months.  The applicant also presents a new request that he be awarded the Combat Infantryman Badge and that it be added to his DD Form 214.

2.  The applicant states, in effect, that while on active duty in Vietnam, he served in a "hot zone" from February through July 1969.  He did get injured in one of the firefights and was sent to Japan where he stayed for 1 month.  His unit was involved in many incidents against hostile enemies and he should have been awarded the Purple Heart and a combat medal [it is believed the applicant means the Combat Infantryman Badge].

3.  In an addendum and in a letter to his MC, the applicant reported that he was providing a copy of a morning report showing he was medically evacuated from Vietnam in the line of duty, but he is not listed on the Vietnam casualty list.  He states that he spent 1 month in Japan due to his injuries.

4.  In the letter to his MC, the applicant restates that he is requesting his assistance in helping him to receive his Purple Heart and the Combat Infantryman Badge.

5.  The applicant submits a DD Form 149 (Application for the Correction of Military Record) with an addendum which was addressed to his MC; a copy of a 9 February 2004 letter he received from the National Personnel Records Center, St. Louis, Missouri; copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) with effective dates of his discharges of 12 July 1969 and 3 November 1971; a copy of a DD Form 215 (Correction to DD Form 214); a copy of a 22 May 2008 letter he received from the National Personnel Records Center, St. Louis, pertaining to a morning report search; a copy of an 11 August 2008 letter he received from the National Personnel Records Center, St. Louis, pertaining to a Line of Duty Report; a copy of a 3 December 2008 letter he received from the National Personnel Records Center, St. Louis, pertaining to a search for clinical records pertaining to his evacuation from Vietnam through the 36th Evacuation Hospital; a copy of item 38 (Record of Assignment) extracted from his DA Form 20 (Enlisted Qualification Record); and a copy of his previous Record of Proceedings in support of his request for reconsideration.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20040003715 on 24 March 2005.

2.  The applicant provides new documentary evidence through his MC, a copy of a morning report for his unit, that was not considered by the Board during its initial review of the applicant's case.  Therefore, this new evidence will now be considered by the Board.

3.  The applicant's record shows he was inducted into the Army of the United States and he entered active duty on 4 September 1968.  He successfully completed basic combat training and advanced individual training at Fort Polk, Louisiana, and upon completion of his training, he was awarded the military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The applicant was honorably discharged on 12 July 1969 from the Army of the United States for the purpose of immediately enlisting in the Regular Army.  The record shows that on 13 July 1969 he enlisted for 3 years in the Regular Army.  At the time of his enlistment in the Regular Army, he was stationed in Di An, Vietnam.  The applicant's record further shows that he continued to serve on active duty and after he incurred considerable lost time (357 days) was discharged under honorable conditions on 3 November 1971.

4.  The applicant was assigned to Company D, 1st Battalion, 28th Infantry, 1st Infantry Division, and served as a light weapons infantryman for the period 30 January 1969 to 23 May 1969 and from 27 June 1969 to 2 August 1969.  Item 38 of his DA Form 20 shows was reassigned to the 116th Aviation Company for duty as an aircraft maintenance apprentice for the period 27 June 1969 to             2 August 1969.  However, his records contain Headquarters, 1st Infantry Division, medical evacuation orders, dated 30 May 1969, which show the applicant was medically evacuated to Japan and hospitalized on 24 May 1969.  Following hospitalization and treatment at the 7th Field Hospital in Japan, he was returned to duty in Vietnam.  On 8 July 1969, Headquarters, U.S. Army Vietnam Transient Detachment, published orders reassigning the applicant from the U.S. Army Vietnam Transient Detachment to the 1st Adjutant General Administration Company with a reporting date of 15 July 1969 and reassigned, in turn, to his previous unit, Company D, 1st Battalion, 28th Infantry, with a reporting date of 15 July 1969.

5.  The applicant's DD Form 214, with a discharge date of 12 July 1969, shows in item 22c (Foreign and/or Sea Service) that he completed 5 months and 13 days of overseas service in the U.S. Army Pacific (USARPAC) by the date of his enlistment in the Regular Army.  

6.  Item 22c of the applicant's DD Form 214 for the period ending 3 November 1971 shows he completed a total of 6 months and 16 days in the USARPAC.  The period of his service in the USARPAC which is covered by this DD Form 214 is from 13 July 1969 through 28 January 1970.

7.  Cumulatively, the applicant served in Vietnam for the period from 30 January 1969 through 28 January 1970, with the exception of the time he was in Japan receiving medical treatment (24 May 1969 through 8 July 1969).

8.  Headquarters, 1st Infantry Division, medical evacuation orders which show the applicant was medically evacuated to Japan do not reveal if the applicant was medically evacuated to receive treatment for a wound, an injury, or for an illness.  The applicant's records also do not contain any medical treatment records or documents to show if and when he received medical treatment in Vietnam and if the treatment was to treat a wound, an injury, or if he received treatment for an illness.

9.  In a statement attached to his request for discharge for the good of the service in lieu of trial by court-martial, the applicant stated, "During my tour of duty in Viet Nam I was awarded the [Combat Infantryman Badge] and also the Air Medal and four or five battle stars.  I was wounded twice during my tour but never received my Purple Heart."  There is no evidence he submitted documentary evidence to support this statement at the time his request for discharge was being processed.

11.  The morning report the applicant secured from the National Personnel Records Center and submitted in support of his request for award of the Purple Heart shows he was released from assignment and was departed from his unit, Company D, 1st Battalion, 28th Infantry Regiment, with an effective date of 17 April 1969.  The applicant was assigned to the Patient Casual Company and was attached to the 36th Evacuation Hospital on the same date.  The applicant's medical evacuation was identified as being "in the line of duty."

12.  Item 40 (Wounds) of the applicant's DA Form 20 is void of an entry to show he was wounded in action as a result of enemy action.  Item 41 (Awards and Decorations) does not include the Purple Heart in the list of his earned awards.

13.  The Vietnam casualty list, which contains the names of those Soldiers who were wounded in Vietnam, does not include the applicant's name.  The Vietnam casualty list has the names of individuals who, among other categories, were listed as "Hostile, Wounded in Action" and specifically identified with a code as follows:  Very Serious Hospitalized-21//Serious Hospitalized-22//Not Serious Hospitalized-23//Not Serious Not Hospitalized-24//Not Serious Not Hospitalized No Notification-25//Not Serious Hospitalized No Notification-26//Special Category Hospitalized-27.  The Vietnam casualty list also has the names of individuals who were listed as "Non- Hostile, Wounded/Ill/Injured."  These individuals are identified as follows with the code shown:  Very Serious-51//Serious-52//Special Category-53//Not Serious No Master Casualty Number-54//Not Serious No Master Casualty Number and No Notification-55.

14.  The applicant's record contains a Standard Form 88 (Report of Medical Examination), dated 27 September 1971, which was prepared at the time his request for discharge was being processed.  This document is void of any notes adjacent to items 18 (Clinical Evaluation of Head, Neck, and Scalp) through 41 (Clinical Evaluation of Neurologic) on the obverse side of the Standard Form 88 and is also void of any notes in item 73 on the reverse side of the Standard 
Form 88 to indicate that he was wounded in action in Vietnam.  A note is found adjacent to item 42 on the obverse side of the Standard Form 88 which indicates that no psychiatric disease was demonstrated by the applicant during the examination.

15.  The applicant's record also contains a Standard Form 89 (Report of Medical History), dated 27 September 1971, which was also prepared at the time his request for discharge was being processed.  This form was primarily prepared by the applicant based on his recollection of diseases, illnesses, or injuries he had experienced over his lifetime.  No entry was made by the applicant to indicate he had been wounded in action or that he had sustained an injury while he served in Vietnam.

16.  Item 41 of the applicant's DA Form 20 does not include the Combat Infantryman Badge in the list of his earned awards.  There are no orders in the applicant's service record to show that he was awarded the Combat Infantryman Badge as he indicated in his statement when his request for discharge for the good of the service in lieu of court-martial was being processed.

17,  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any orders for either the Purple Heart or the Combat Infantryman Badge to the applicant.

18.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  The edition of this regulation in effect on the date of the applicant's release from active duty specified that total active duty outside continental limits of the United States for the period covered by the DD Form 214 would be entered in item 22c.

19.  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.

20.  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.  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 U.S. Army Vietnam Regulation 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.

21.  Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) states, in pertinent part that line of duty determinations are essential for protecting the interest of both the individual and the Government where service is interrupted by injury, disease, or death.  Line of duty investigations are conducted to determine whether misconduct or negligence was involved in the disease, injury, or death and, if so, to what degree.  Depending on the circumstances of the case, an investigation may or may not be required to make this determination.  Investigations can be conducted informally by the chain of command where no misconduct or negligence is indicated or formally where an investigating officer is appointed to conduct an investigation into suspected misconduct or negligence.  A person who becomes a casualty because of his or her intentional misconduct or willful negligence can never be said to be injured, diseased, or deceased in the line of duty.  Such a person stands to lose substantial benefits as a consequence of his or her actions; therefore, it is critical that the decision to categorize injury, disease, or death as not in the line of duty only be made after deliberate and ordered procedures are followed.

DISCUSSION AND CONCLUSIONS:

1.  To be awarded the Purple Heart, substantiating evidence must be presented to show that the applicant was wounded as a 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.

2.  In his application to the Board, the applicant stated he had served in a "hot zone" from February through July 1969 while he was in Vietnam.  He stated he had been injured in one of the firefights and was sent to Japan where he stayed for a month.  He added that his unit was involved in many incidents against hostile enemies and he should have been awarded the Purple Heart. 

3.  The applicant's name is not listed in the Vietnam casualty list.

4.  Item 40 of the applicant’s DA Form 20 is void of an entry to show he was wounded in action as a result of enemy action.  Item 41 does not include the Purple Heart in the list of his earned awards.

5.  The Standard Form 88 and Standard Form 89 in the applicant's service records are both void of any notes or entries that would indicate that he was wounded in action in Vietnam.
6.  The morning report the applicant submitted in support of his request for award of the Purple Heart shows his medical evacuation to Japan was "in the line of duty."  This determination did not necessarily mean that the applicant was wounded in action against a hostile enemy.  In the line of duty meant that he was medically evacuated because he was wounded in action, or that he was injured accidentally, or that he became ill while he was not absent from his unit without authority and the necessity for his medical evacuation was not due to his own misconduct.

7.  Based on this evidence, the applicant is not entitled to award of the Purple Heart and its addition to his DD Form 214.
8.  To be entitled to award of the Combat Infantryman Badge the evidence must show that the applicant held and served in an infantry MOS while assigned or attached to an infantry unit of brigade, regimental, or smaller size, and must have served in active ground combat while assigned or attached to this infantry unit.

9.  The evidence shows that the applicant was assigned to an infantry company and was serving in an infantry MOS; however, there is no evidence or indication that he served in active ground combat while assigned or attached to this infantry unit.  Therefore, based on the evidence in this case, the applicant is not entitled to award of the Combat Infantryman Badge and to have it added to his DD Form 214.

10.  Review of the ADCARS failed to reveal any orders awarding the Purple Heart or the Combat Infantryman Badge to the applicant.

11.  The applicant's DD Form 214 for the period ending 12 July 1969 shows he completed 5 months and 13 days of overseas service in the USARPAC.  The applicant, an inductee, enlisted in the Regular Army at about the mid-point of his tour of duty in Vietnam.  By the date of his enlistment in the Regular Army, he had completed the 5 months and 13 days of service in the USARPAC.

12.  The applicant's DD Form 214 for the period ending 3 November 1971 shows he completed a total of 6 months and 16 days in the USARPAC.  The period of his service in the USARPAC which is covered by this DD Form 214 is from 13 July 1969 through 28 January 1970.

13.  Cumulatively, the applicant was credited with having served in Vietnam for the period from 30 January 1969 through 28 January 1970, with exception of the time he was in Japan receiving medical treatment from 24 May 1969 through 8 July 1969.

14.  In the period covered by his first issued DD Form 214, the applicant served in Vietnam from 30 January 1969 through 24 May 1969 and from 8 July 1969 through 12 July 1969.  In the period covered by his second issued DD Form 214, the applicant served in Vietnam from 13 July 1969 through 28 January 1970.  The amount of time shown in item 22c in each of the applicant's DD Forms 214, which actually shows the total amount of time served in the USARPAC, is correct and therefore not in need of correction.



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 to amend the decision of the ABCMR set forth in Docket Number AR20040003715, dated 24 March 2005.



      _______ _   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)                                         AR20090004859



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ABCMR Record of Proceedings (cont)                                         AR20090004859



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