IN THE CASE OF:	  

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090010397 


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 to his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 September 1990, to show award of the Purple Heart with fifth oak leaf cluster and the Combat Infantryman Badge.

2.  The applicant states, in effect, that during his service in Vietnam he served in combat as an infantryman and was wounded six times.  His 1990 DD Form 214 only shows the Purple Heart with fourth oak leaf cluster.  He also states that he was awarded the Combat Infantryman Badge while serving in a Reconnaissance Platoon.  He states he included a copy of his DA Form 20 (Enlisted Qualification Record) for the Purple Heart information, but he does not have the information for the Combat Infantryman Badge, as it was lost by the 1st Cavalry. 

3.  In support of his application, the applicant provides copies of his DA Form 20 and his 1990 DD Form 214.

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 he enlisted in the Regular Army in pay grade E-1 on 13 September 1960, for 3 years.  He completed basic and advanced training and was awarded military occupational specialty (MOS) 11B (light weapons infantryman).  He was honorably discharged on 7 November 1962, for immediate reenlistment.  

3.  The applicant reenlisted in the Regular Army in pay grade E-4 on 8 November 1962, for 6 years.  He served in Vietnam from 16 September to 4 October 1965 with Headquarters and Headquarters Company, 2nd Brigade, 1st Cavalry Division (Airmobile (AM)).  He served with Company A, 227th Assault Helicopter Battalion, 1st Cavalry Division (AM) from 5 October 1965 to 4 February 1966; and with Company D, 1st Battalion, 5th Cavalry, 1st Cavalry Division (AM) from 
5 February to on or about 28 July 1966.  This service took place during three campaign periods. 

4.  The applicant's DA Form 20, Item 40 (Wounds) shows fragments to left leg – 25 March 1966; fragments to both hands and both hips – 26 March 1966; punji stick to left leg – 5 April 1966; and punji stick to left leg and left hand – 17 April 1966.  Item 45 (Item Continuation) of wounds in Item 40 shows fragments to left leg – 21 May 1966; and punji stick to right leg – 11 June 1966.  Item 41 (Awards and Decorations) lists the Purple Heart with fifth oak leaf cluster awarded by Headquarters, 1st Calvary Division General Orders Number 2217, dated 28 June 1966.  Item 41 does not list the Combat Infantryman Badge.  

5.  There are no orders in the applicant's military personnel records awarding him the Purple Heart with five oak leaf clusters or the Combat Infantryman Badge during his period of service in Vietnam.  

6.  The applicant was honorably discharged on 14 November 1967, for immediate reenlistment.  He was issued a DD Form 214 that shows in Item 
24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) the following awards:  the Good Conduct Medal (1st Award), the Air Medal with six oak leaf clusters, the Purple Heart (4 awards), the Vietnam Service Medal, the National Defense Service Medal, one Overseas Service Bar, the Republic of Vietnam Campaign Medal with Device 1960, the Army Commendation Medal, and the Army Commendation Medal with “V” Device.  The Purple Heart with fifth oak leaf cluster and the Combat Infantryman Badge are not listed.

7.  The applicant reenlisted in the Regular Army on 15 November 1967 and was honorably discharged on 22 January 1970 to accept a commission.  He was appointed in the United States Army Reserve (USAR), Infantry Branch, on 23 January 1970, and entered active duty the same day.  He was released from active duty on 4 September 1973, due to reduction in strength, and transferred to the USAR Control Group (Standby).  He was issued a DD Form 214 that does not list the Purple Heart with fifth oak leaf cluster or the Combat Infantryman Badge in Item 24.  

8.  The applicant enlisted in the Regular Army in pay grade E-6 on 5 September 1973 and on 6 June 1979.  He served continuously through several reenlistments until he was separated due to retirement for length of service on 30 September 1990.  

9.  The applicant’s DD Form 214 for the period ending 30 September 1990, Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), shows the following awards:  the National Defense Service Medal, the Meritorious Service Medal with first oak leaf cluster, the Army Commendation Medal with fourth oak leaf cluster, the Air Medal (6th Award), the Purple Heart with fourth oak leaf cluster, the Army Good Conduct Medal (10th Award), the Vietnam Service Medal, the Legion of Merit, the Republic of Vietnam Campaign Medal, the Army Service Ribbon, the Overseas Service Ribbon, the Republic of Vietnam Gallantry Cross Unit Citation with Palm, the Noncommissioned Officer Professional Development Ribbon with Numeral 1, and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16).  The Purple Heart with fifth oak leaf cluster and the Combat Infantryman Badge are not listed.

10.  The Vietnam Casualty Roster shows the applicant was wounded on 25 and 26 March 1966, on a date recorded as 17/00/66, and on 17 June 1966 and the casualty status codes were "23."  This code indicates the status "hostile wounded in action, not serious, hospitalized."  The roster does not show he was wounded or injured on any other dates during his period of service in Vietnam.

11.  A review of the Awards and Decorations Computer Assisted Retrieval System of the records of the applicant's units for the timeframe the applicant served in Vietnam was conducted.  This review failed to show any orders were published authorizing award of the Purple Heart or the Purple Heart with fifth oak leaf cluster or the Combat Infantryman Badge to the applicant.  

12.  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 military personnel, and the medical treatment must have been made a matter of official record.  A Purple Heart is authorized for the first wound suffered under the foregoing conditions, but for each subsequent award, an oak leaf cluster will be awarded.  Not more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent.

13.  Army Regulation 600-8-22 also 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 military occupational specialty (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 Republic of 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.

14.  Army Regulation 600-8-22 further authorizes a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate campaign or service medal, including the Vietnam Service Medal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214, dated 30 September 1990, does not show he was awarded the Purple Heart with fifth oak leaf cluster.  There are no general orders in the available records that show he was awarded the Purple Heart with fifth oak leaf cluster.  His DA Form 20 shows he wounded on six different dates during his period of service in Vietnam and awarded the Purple Heart with fifth oak leaf cluster.  Based on regulatory guidance, a Purple Heart is authorized for the first wound suffered, but for each subsequent award, an oak leaf cluster will be awarded.  Therefore, the applicant is entitled to correction to his 1990 DD Form 214 to show his award of the Purple Heart with fifth oak leaf cluster.

2.  There are no orders that show the applicant was awarded the Combat Infantryman Badge.  The Vietnam Casualty Roster shows he was wounded as a result of hostile action in the Republic of Vietnam on six different dates in 1966. The available evidence also shows he was awarded the Purple Heart for each incident.  The evidence also shows the applicant was assigned in an infantry MOS, and he served in a cavalry unit in the Republic of Vietnam.  The fact that he was wounded confirms he was personally present and participated in active ground combat while assigned or attached to this cavalry unit.  Therefore, he is entitled to award of the Combat Infantryman Badge and to have this award shown on his 1990 DD Form 214.

3.  Evidence of record shows the applicant participated in three campaigns during his service in Vietnam.  He is therefore further entitled to award of three bronze service stars to be affixed to his already-awarded Vietnam Service Medal and to add them to his DD Form 214 at this time.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

____x____  ____x____  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period ending 30 September 1990 to add the Combat Infantryman Badge, to show he was awarded the Purple Heart with fifth oak leaf cluster in lieu of the fourth oak leaf cluster now shown, and showing he is authorized to wear three bronze service stars on his already-awarded Vietnam Service Medal; and by providing him a correction to his DD Form 214 that includes these awards.




      _______ _   _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)                                         AR20090010397



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ABCMR Record of Proceedings (cont)                                         AR20090010397



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