IN THE CASE OF:	

		BOARD DATE:	 15 April 2010 

		DOCKET NUMBER:  AR20090015805 


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 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, Combat Infantryman Badge, and the Purple Heart.

2.  The applicant states the Bronze Star Medal and Combat Infantryman Badge were omitted from his DD Form 214.  He also states the Purple Heart was given to him and then taken away because "W/P" [presumed to be white phosphorus] was not enemy inflicted.

3.  The applicant provides General Orders Number 5228, dated 18 October 1970 awarding him the Bronze Star Medal.

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 was inducted into the Army of the United States on 13 January 1969.  He was awarded the military occupational specialty (MOS) of 11B (light weapons infantryman).  The highest rank/grade he held was sergeant (SGT)/pay grade E-5.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam during the period 23 December 1969 to 27 October 1970.  This document shows:

	a.  he performed duties related to MOS 11F (infantry operations and intelligence specialist) while assigned to Headquarters and Headquarters Company, 2d Brigade, 4th Infantry Division during his tour of duty in the Republic of Vietnam from 2 January to 5 May 1970; and

	b.  he performed the duties of a team leader and assistant patrol leader while assigned to Company K, 75th Infantry, 4th Infantry Division from 6 May to 27 October 1970.  

4.  The applicant's Official Military Personnel File (OMPF) contains General Orders Number 5228, dated 18 October 1970, awarding him the Bronze Star Medal for achievement in connection with military operations against an armed hostile force for the period 17-31 August 1970.

5.  The applicant's OMPF also contains General Orders Number 5365, dated 
24 October 1970, awarding him the Bronze Star Medal with First Oak Leaf Cluster for meritorious service in connection with military operations against an armed hostile force.

6.  Item 40 (Wounds) of the applicant's DA Form 20 is blank.

7.  The applicant's name does not appear on the Vietnam Casualty Roster.

8.  Available records are void of orders or other documents that indicate he was recommended for or awarded the Purple Heart or Combat Infantryman Badge by proper authority.

9.  The applicant was honorably released from active duty on 28 November 1970 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  He completed 1 year, 10 months, and 16 days of creditable active service.


10.  The applicant's records show he is entitled to additional awards and decorations, which he did not request and are not shown on his DD Form 214.

11.  The applicants OMPF contains General Orders Number 5475, dated 29 October 1970, awarding him the Good Conduct Medal (First Award).

12.  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 orders for award of the Purple Heart or Combat Infantryman Badge.

13.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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 medical personnel, and the medical treatment must have been made a matter of official record.  It further provides for award of the Purple Heart to individuals wounded or killed as a result of “friendly fire” in the “heat of battle” as long as the “friendly” projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.

14.  Army Regulation 600-8-22 provides that the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry 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 USARV 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.  It further states that combat service alone is not a sufficient basis to support award of the Combat Infantryman Badge.

15.  Appendix B of Army Regulation 600-8-22 shows the campaigns for Vietnam.  During the applicant's tour in Vietnam he participated in the Vietnam Winter - Spring 1970 (1 November 1969 - 30 April 1970), DA Sanctuary Counteroffensive (1 May - 30 June 1970), and Vietnam Counteroffensive Phase VII (1 July 1970 - 30 June 1971) campaigns.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

16.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows unit awards received by units serving in the Republic of Vietnam (RVN).  Headquarters and Headquarters Company, 2d Brigade, 4th Infantry Division was cited for award of the RVN Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders (DAGO) Number 52, dated 1971.

DISCUSSION AND CONCLUSIONS:

1.  General orders show the applicant was awarded the Bronze Star Medal with First Oak Leaf Cluster and the Good Conduct Medal.  Therefore, he is entitled to correction of his DD Form 214 corrected to show these medals.

2.  General orders awarded the applicant's unit the RVN Gallantry Cross with Palm Unit Citation which is not shown on his DD Form 214.  He is entitled to correction of his DD Form 214 to show this unit award.

3.  The available records show the applicant was awarded the Vietnam Service Medal and he participated in three campaigns while serving in the RVN.  Therefore, he is entitled to correction of his DD Form 214 to show the Vietnam Service Medal with three bronze service stars.

4.  Although the applicant contends the Purple Heart was given to him and then taken away, there is no evidence in his available military personnel records showing he was recommended for or awarded the Purple Heart or any corroborating evidence which shows he was wounded as a result of hostile action.

5.  Additionally, the applicant's DA Form 20 does not show he was wounded and the applicant's name is not listed on the Vietnam Casualty Roster.

6.  In the absence of evidence that shows the applicant was wounded or injured in action against an enemy or as a result of hostile action and treated for such wounds, there is insufficient evidence upon which to base award of the Purple Heart.  As a result, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  Therefore, there is no basis for adding this award to his DD Form 214.

7.  The available evidence shows the applicant served in an infantry MOS while assigned to an infantry unit; however, the available evidence does not show he was personally present and participated with a qualifying infantry unit while the unit was engaged in active ground combat with enemy forces.  As such, there is insufficient evidence to show he met the eligibility criteria for award of the Combat Infantryman Badge.

8. In view of the foregoing, the applicant is entitled to have his records corrected as shown below.

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: 

	a.  deleting from item 24 of his DD Form 214 the Vietnam Service Medal; and

	b.  adding to item 24 of his DD Form 214 the Bronze Star Medal with First Oak Leaf Cluster, Good Conduct Medal, Vietnam Service Medal with three bronze service stars, and RVN Gallantry Cross with Palm Unit Citation.

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 Purple Heart and Combat Infantryman Badge.



      _______ _ 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)                                         AR20090015805



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ABCMR Record of Proceedings (cont)                                         AR20090015805



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