IN THE CASE OF:	  

		BOARD DATE:	  4 February 2010

		DOCKET NUMBER:  AR20090011565 


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, due to the needs of his unit, he was required to fill in as an infantryman.  He also states that during a security sweep between
8 and 10 April 1968 (approximate dates) he sustained a shrapnel wound during an enemy attack.  He claims he was treated by a medical corpsman (MEDIC), who indicated his wound was not serious enough to be reported.  

3.  The applicant provides a VA Form 21-4138 (Statement in Support of Claim) 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 9 September 1966, and he was trained in and awarded military occupational specialty (MOS) 76Y (Supply Specialist).  

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 29 March 1968 through 28 August 1968.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Headquarters and Headquarters Company, 5th Battalion, 46th Infantry Regiment, 2nd Armored Division, performing duties in MOS 76Y as a supply specialist.  

4.  Item 40 (Wounds) of the applicant's DA Form 20 is blank, and the CIB and PH are not included in the list of awards contained in item 41 (Awards and Decorations.  Item 48 (Date of Audit) shows the applicant last audited the 
DA Form 20 on 28 August 1968.  

5.  The applicant's Official Military Personnel File (OMPF) is void of any orders or documents that indicate the applicant was ever recommend for or awarded the PH and/or CIB while serving in the RVN.  It also contains no medical treatment records that show he was ever wounded in action, or treated for a combat related wound.  

6.  On 31 August 1968, the applicant was honorably released from active duty, in the rank of specialist four, after completing 1 year, 11 months, and 22 days of active military service.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he earned the following awards during his active duty tenure:  National Defense Service Medal, Vietnam Service Medal, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  

7.  During the processing of this case, a member of the Board's staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  There was no entry on this roster pertaining to the applicant.  

8.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-8 contains guidance on award of the PH.  It 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 the medical treatment must have been made a matter of official record. 


9.  Chapter 8 of the awards regulation contains guidance on Badges and Tabs of United States origin.  Paragraph 8-6 contains guidance on the CIB and states, in pertinent part, that there are three basic requirements for award of the CIB.  They are that the member be an infantryman satisfactorily performing infantry duties; that he 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 that he was present with his qualifying infantry unit and actively participated in such ground combat.  Combat service or campaign credit alone is not sufficient to award the CIB.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the PH and CIB was carefully considered.  

2.  The applicant's record is void of any orders or other documents that indicate he was ever recommended for or awarded the PH and/or CIB by proper authority in the five months he served in the RVN.  Item 40 of his DA Form 20 is blank, which is an indication that he was never wounded in action, and the PH and CIB are not included in the list of earned awards contained in item 41.  The applicant last audited the DA Form 20 on 28 August 1968, upon his departure from the RVN and there is no indication that he raised this issue during this audit.  His name is not listed on the Vietnam Casualty Roster.

3.  Absent any evidence of record or independent evidence provided by the applicant that confirms he was wounded in action, or that he was an infantryman satisfactorily performing infantry duties while serving in the RVN, the regulatory burden of proof necessary to support award of the PH and/or CIB has not been satisfied in this case.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief.  

4.  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 related to award of the PH and/or CIB.  

5.  The applicant and all others concerned should know that this action related to award of the PH and CIB 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)                                         AR20090011565



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ABCMR Record of Proceedings (cont)                                         AR20090011565



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