BOARD DATE:	  20 August 2009

		DOCKET NUMBER:  AR20090005996 


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 Purple Heart (PH) and Combat Infantryman Badge (CIB).  

2.  The applicant states, in effect, the PH and CIB are not included in the list of awards contained in item 24 (Decorations, Medals, Badges, Citations, Commendations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and that he received a shrapnel wound to his right shoulder and right knee, which resulted in a 10 percent disability rating from the Department of Veterans Affairs. 

3.  The applicant provides no documentation in support of his application.

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 record shows he was inducted into the Army of the United States and entered active duty on 15 September 1967.  His record shows he was initially awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman) on 9 February 1968, and he was later awarded MOS 76V (Equipment Storage Specialist) on 6 October 1968.  

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 8 March 1968 through 7 March 1969.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to the following units for the periods indicated:  Company B, 1st Battalion (Airborne), 502nd Infantry, from 20 March 1968 through 6 July 1968; 501st Supply Company, 101st Air Cavalry Division, from 7 July 1968 through
31 July 1968; and Company A, 426th Supply and Service Battalion, from
1 August 1968 through 2 March 1969.

4.  Item 40 (Wounds) of the applicant's DA Form 20 is blank and item 41 (Awards and Decorations) shows he earned the National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), Army Good Conduct Medal (AGCM), Army Commendation Medal (ARCOM), Bronze Star Medal (BSM) and Expert Marksmanship Qualification Badge with Rifle Bar.  Item 41 does not include the PH or CIB in the list of authorized awards entered.  Item 48 (Date of Audit) shows the applicant last audited the DA Form 20 on 17 April 1969, subsequent to his completing his RVN tour.  

5.  The applicant's record is void of any orders or other documents that indicate he was ever recommended for or awarded the PH or CIB by proper authority while serving on active duty.  It is also void of any medical treatment records or documents indicating he was ever treated for a wound he received as a result of enemy action.

6.  On 17 June 1969, the applicant was honorably released from active duty (REFRAD) after completing 1 year, 9 months, and 3 days of active military service.  Item 24 of the DD Form 214 he was issued at the time shows he earned the NDSM, VSM with 2 bronze service stars, ARCOM, BSM, 2 Overseas Bars, Expert Marksmanship Qualification Badge with Machinegun (M-60) and Rifle
(M-14) Bars, Marksman Marksmanship Qualification Badge with Rifle (M-16) Bar, RVNCM with Device (1960), and AGCM (1st Award).  The PH and CIB are not included in the list of awards contained in item 24 and the applicant authenticated the DD Form 214 with his signature in item 32 (Signature of Person Being Transferred or Discharged) on the date of his REFRAD.


7.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant's name was not included on this list.  Additionally, a 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 United States Army Human Resources Command, failed to reveal any orders for the PH or CIB for the applicant.

8.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to support award of the PH there must be evidence showing that the wound for which the award is being made was received as a result of enemy action, that it was treated by medical personnel, and a record of this treatment must have been made a matter of official record.  

9.  Chapter 8 of the awards regulation contains guidance on the CIB and provides, in pertinent part, that there are basically three requirements for the CIB. These requirements are that the member hold and be serving in an infantry MOS; that he be assigned to an infantry unit of brigade, regimental or smaller size; and that he be present and participate with his qualifying infantry unit while it is engaged in active ground combat with the enemy.  Combat service and campaign participation alone does not qualify a member for the CIB.   

10.  U.S. Army Vietnam (USARV) Regulation Number 672-1, Appendix V, stated that the CIB was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11F, 11G, or 11H.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was awarded the PH and CIB and that they should be added to the list of awards on his DD Form 214 was carefully considered.  However, there is insufficient evidence to support this claim. 

2.  The regulatory requirement to support award of the CIB includes not only that the member hold and serve in an infantry MOS in a qualifying infantry unit, but also confirmation that the member was present and participated with his qualifying infantry unit while it was engaged in active ground combat with enemy forces.  


3.  The applicant's DA Form 20 contains an entry in item 38 that shows the applicant served in an infantry MOS in an infantry unit for a little over 3 months while he was serving in the RVN.  However, there is no indication that during this period he was ever present and personally participated with his unit while it was engaged in active ground combat with enemy forces.  Further, the applicant was awarded the BSM and ARCOM in orders issued on 19 November 1968 and
7 January 1969, for meritorious service and achievement between April and November 1968, while he was serving in a supply MOS and position.  As a result, absent any evidence of his personal participation in active ground combat with his qualifying infantry unit while serving as an infantryman, the regulatory requirements necessary to support award of the CIB have not been met in this case.

4.  By regulation, in order to support award of the PH, there must be evidence confirming that the wound for which the award is being made was received as a result of enemy action, that it required treatment by medical personnel, and a record of this treatment must have been made a matter of official record.  In this case, item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action.  Item 41 of his DA Form 20 does not include the PH in the list of earned awards entered and there is no documentary evidence of record or independent evidence provided by the applicant that shows he was ever wounded in action, or that he was ever treated for a combat-related wound while serving in the RVN.  

5.  Further, the applicant's record is also void of any orders or other documents and he has failed to provide any that show he was ever recommended for or awarded the PH by proper authority while serving on active duty.  His name is not included on the Vietnam Casualty Roster, which is the official DA list of RVN battle casualties, and there are no PH orders in the ADCARS file.  As a result, the regulatory burden of proof necessary to support award of the PH has also not been satisfied in this case.

6.  Absent any evidence of record or independent documentary evidence provided by the applicant that corroborates his claim that he should be awarded the PH and CIB, it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to support granting the requested relief.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  

8.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  

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)                                         AR20090005996



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ABCMR Record of Proceedings (cont)                                         AR20090005996



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