IN THE CASE OF:	  

		BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090009263 


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, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Bronze Star Medal, Purple Heart, and Combat Infantryman Badge.

2.  The applicant essentially states that he was wounded in action on 
16 February 1969 and that his commanding officer informed him that he recommended him for award of the Purple Heart and the Bronze Star Medal, which he was subsequently awarded by a colonel from the 1st Infantry Division.  He also provides two photographs of him in Vietnam in uniform with the Combat Infantryman Badge above his U.S. Army patch, and mentions that the Combat Infantryman Badge is only awarded to a Soldier after having served at least 
30 days in a combat infantry unit and, more specifically, after a Soldier has been in combat for 30 days.  Further, he claims that his fellow Soldiers would have deeply frowned on him for attaching the Combat Infantryman Badge to his fatigues if he had not earned it, not to mention the embarrassment it would have caused his commanding officer if he would have been aware of his unauthorized wear of the Combat Infantryman Badge.

3.  The applicant provides a continuation page to his DD Form 149 (Application for Correction of Military Records); a self-authored memorandum, dated 20 May 2009; two photographs of himself in uniform; and a copy of his Department of Veterans Affairs (DVA) identification card in support of this 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 military records show that he enlisted in the Regular Army (RA) on 24 June 1968 for 3 years.  He completed basic combat and advanced individual training, and he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He was later awarded MOS 36K (Radio Telephone Operator).  He departed for the Republic of Vietnam on 18 January 1969 and he was initially assigned as a Rifleman in duty MOS 11B with Company A, 1st Battalion, 28th Infantry Regiment on 25 January 1969.  Orders, dated 31 March 1969, directed the applicant's reassignment to Headquarters and Headquarters Company (HHC), 277th Supply and Services Battalion with a reporting date of 1 April 1969 [his DA Form 20 (Enlisted Qualification Record) incorrectly shows that he was reassigned to HHC, 277th Supply and Services Battalion on 7 April 1970].  He returned to the continental United States on
18 January 1970 and he served at Fort Stewart, GA and Hunter Army Airfield, GA until he was honorably discharged from active duty on 22 December 1970.  The DD Form 214 that he was issued at the time of his discharge essentially shows that he was awarded the National Defense Service Medal.

3.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not show award of the Bronze Star Medal or the Purple Heart.  There are no general orders in the applicant’s military records which awarded him the Bronze Star Medal or the Purple Heart.  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 Bronze Star Medal or the Purple Heart pertaining to the applicant.  Further, the Vietnam Casualty Roster does not contain an entry showing that the applicant was wounded in action.

4.  Item 24 of the applicant's DD Form 214 also does not show that he was awarded the Combat Infantryman Badge.  There are no special orders in the applicant’s military records which awarded him the Combat Infantryman Badge.  

5.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Bronze Star Medal is awarded to any person who distinguished himself or herself after 6 December 1941 by heroic or meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy; or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders is required.

6.  Army Regulation 600-8-22 also 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 been treated by military personnel, and the medical treatment must have been made a matter of official records.  This regulation also provides that there is no time limitation on requests for award of the Purple Heart.  Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire; the wound or injury must have required treatment by medical personnel; and the record of medical treatment must have been made a matter of official Army records.

7.  Army Regulation 600-8-22 further 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.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.  Battle or campaign participation credit alone is not sufficient; the unit must have been in active ground combat with the enemy during the period and the applicant must have participated in that ground combat.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show the award of the Bronze Star Medal, the Purple Heart, and the Combat Infantryman Badge. 

2.  The sincerity of the applicant's claim that he was awarded the Bronze Star Medal and the Purple Heart is not in question.  However, all awards of the Bronze Star Medal and the Purple Heart must be announced in official orders, 
which the applicant did not provide and are not in his military records. 
Regrettably, in view of the foregoing, there is insufficient basis for correcting his DD Form 214 to show the award of the Bronze Star Medal or the Purple Heart in this case.  

3.  The applicant's statement that the Combat Infantryman Badge is only awarded to a Soldier after having served at least 30 days in a combat infantry unit and, more specifically, after a Soldier has been in combat for 30 days was noted.  However, the applicant is misinformed on this matter, as there is no entitlement to award of the Combat Infantryman Badge after a certain period of time while assigned to an infantry unit.

4.  The photographs provided by the applicant which he states are of him in uniform in Vietnam wearing a Combat Infantryman Badge above his U.S. Army patch were noted.  However, there are no orders in his military records and he did not provide any orders which awarded him the Combat Infantryman Badge.  The fact that he provided photographs of himself wearing the Combat Infantryman Badge despite there being no orders awarding him this badge suggests that the applicant may have presumed he was automatically entitled to the Combat Infantryman Badge because he was an infantry Soldier who served in an infantry battalion in Vietnam.  Regrettably, absent orders which officially awarded him the Combat Infantryman Badge or evidence which conclusively shows that he was an infantryman while assigned to Company A, 1st Battalion, 28th Infantry Regiment and that he participated in active ground combat with this unit, there is an insufficient basis for correcting his DD Form 214 to show the award of the Combat Infantryman Badge.








BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x____  ____x____  ___x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  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)                                         AR20090009263



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ABCMR Record of Proceedings (cont)                                         AR20090009263



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