BOARD DATE:	  12 November 2009

		DOCKET NUMBER:  AR20090006324 


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 the Purple Heart (PH) and Combat Infantryman Badge (CIB) be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states he was injured in battle and the awards were left off his DD Form 214.  He also states that two different service numbers (SN) were used for him in award orders, the correct SN ending in "3" and the incorrect SN ending in "8."

3.  The applicant provides Air Medal (AM) and Army Commendation Medal (ARCOM) orders 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 and entered active duty on 22 March 1966, and was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The DD Form 47 (Record of Induction) completed on the applicant during his induction processing lists his SN in item 2 (Service Number) using "3" as the final number.

3.  The applicant's DA Form 20 (Enlisted Qualification Record), prepared upon his entry on active duty, lists his SN using the last number "3" in item 1 (Name and Service Number).  Item 31 (Foreign Service) shows he served in the Republic of Vietnam (RVN) from 30 September 1966 through 29 September 1967.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company B, 1st Battalion, 7th Cavalry Regiment, 1st Cavalry Division, performing duties in MOS 11B as a rifleman.  Item 40 (Wounds) is blank and item 41 (Awards and Decorations) lists the following earned awards:  National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), AM, RVN Campaign Medal, two overseas service bars, ARCOM, and Army Good Conduct Medal (AGCM).  The PH and CIB are not included in the list of awards contained in item 41.

4.  The applicant's official military personnel file (OMPF) contains Headquarters, 1st Cavalry Division, General Orders Number 4690, dated 14 August 1967, and Headquarters, 1st Cavalry Division, General Orders Number 5199, dated 7 September 1967, which awarded the applicant the AM and ARCOM, respectively.  Both orders list his SN using the last number "8."

5.  The applicant's OMPF is void of any orders or other documents that indicate the applicant was ever wounded in action or awarded the PH by proper authority. 
There are also no medical treatment records on file that indicate he was ever treated for a combat-related wound or injury.

6.  On 21 March 1968, the applicant was honorably released from active duty in the rank of sergeant after completing 2 years of active military service.  The DD Form 214 he was issued lists his SN using the last number "3" in item 2.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows he earned the following awards during his active duty tenure:  ARCOM, NDSM, AGCM, RVN Campaign Medal with Device (1960), VSM with one bronze service star, Expert Marksmanship Qualification Badge with Rifle Bar, and two overseas service bars. 
The PH and CIB are not included in the list of awards contained in item 24.

7.  A supplemental packet was submitted by the applicant's Member of Congress in support of his request which included a 1st Cavalry Division certificate of achievement that was issued based on the applicant's outstanding and meritorious service in connection with ground operations against a hostile force in the RVN during the period October 1966 through October 1967 and a partial unsigned CIB order that shows he was awarded the CIB on 7 December 1966.

8.  During the processing of this case, a staff member of the Board reviewed the Department of the Army Vietnam casualty roster.  The applicant’s name was not included on this list of RVN casualties.

9.  Army Regulation 600-8-22 (Military Awards) contains the Army's award policy. 
Paragraph 2-8 contains guidance on the PH and states, in pertinent part, that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that it required treatment by military medical personnel, and a record of this treatment must have been made a matter of official record.

10.  Paragraph 2-13 of Army Regulation 600-8-22 contains guidance on the VSM and states, in pertinent part, that a bronze service star is authorized with this award for each campaign a member is credited with participating in while serving in the RVN.

11.  Chapter 8 of Army Regulation 600-8-22 contains guidance on award of badges and tabs of United States origin and paragraph 8-6 contains guidance on the CIB.  It states, in pertinent part, that there are basically three requirements to support award of the CIB.  The member be an infantryman satisfactorily performing infantry duties; he must be assigned to an infantry unit of brigade, regimental, or smaller size during such time as the unit is engaged in active ground combat; and he must have actively participated in such ground combat.

12.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It confirms that during his tenure of assignment in the RVN, the applicant’s unit (Company B, 1st Battalion, 7th Cavalry Regiment) received the Presidential Unit Citation (PUC) for the period 12 December 1966 through 18 February 1967 which was authorized and announced in Department of the Army General Orders Number 2 issued in 1973 and the RVN Gallantry Cross with Palm Unit Citation.  Army Pamphlet 672-3 also shows that during his tenure of assignment, participation credit was granted for the Vietnam Counteroffensive Phase II and Vietnam Counteroffensive Phase III campaigns.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the last digit of the applicant's SN is "3" and that this number is properly listed on his enlistment documents, service record, and DD Form 214.  There are incorrect SNs listed on various award orders on file in his record.  However, correcting these orders is not required to add the awards he earned to his record and DD Form 214.

2.  Item 41 of the applicant's DA Form 20 and orders in his OMPF confirm he earned the AM for the period October 1966 through June 1967; therefore, it would be appropriate to add this award to item 24 of his DD Form 214 at this time.

3.  Although the applicant's record is void of any record entries, orders, or other documents that indicate he was ever awarded the CIB, it is clear he held and served in an infantry MOS performing infantry duties in a qualifying infantry unit while serving in the RVN.

4.  Further, the citation contained in the 1st Cavalry Division certificate of achievement provided by the applicant through his Member of Congress appears to support the conclusion that he was regularly present and participated with his qualifying infantry unit while it was engaged in active ground combat with hostile forces while serving in the RVN.  Therefore, it appears likely the partial CIB order provided through his Member of Congress is valid and it would be appropriate to add the CIB to his record and item 24 of his DD Form 214 at this time.

5.  The evidence of record also shows that based on his RVN service and campaign participation, the applicant is also eligible for the PUC, RVN Gallantry Cross with Palm Unit Citation and two bronze service stars with his VSM.  Therefore, it would also be appropriate to add these awards to his DD Form 214 at this time.

6.  The applicant's contention that he was wounded in action and should be awarded the PH was also carefully considered.  However, there is insufficient evidence to support this claim.

7.  Item 40 of the applicant's DA Form 20 is blank which indicates he was not wounded in action and the PH is not included in the list of awards contained in item 41.  His OMPF is void of any medical treatment records that indicate he was 

ever treated for a combat-related wound while serving in the RVN and it is also void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty.

8.  Further, the applicant's name is not included on the Vietnam casualty roster, the official list of RVN battle casualties.

9.  Absent any evidence of record or independent evidence that shows the applicant was wounded in action and or treated for a combat-related wound by military medical personnel, the regulatory burden of proof necessary to support award of the of PH has not been satisfied in this case.  Therefore, there is an insufficient evidentiary basis to support granting this portion of the requested relief and it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to support award of the PH in this case at this late date.

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 amending item 24 of his DD Form 214 by adding the AM, PUC, RVN Gallantry Cross with Palm Unit Citation, a second bronze service star for his already-awarded Vietnam Service Medal, and the CIB and by providing him a correction to his DD Form 214 that includes these awards.

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 award of the PH.

3.  The Board wants the applicant and all others concerned to know that this action related to award of the PH 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.




      ____________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)                                         AR20090006324



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ABCMR Record of Proceedings (cont)                                         AR20090006324



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