BOARD DATE:	  25 March 2010

		DOCKET NUMBER:  AR20090016410 


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 award of the Purple Heart (PH) and Combat Infantryman Badge (CIB).

2.  The applicant states he should receive the PH based on receiving shrapnel wounds while serving in the Republic of Vietnam (RVN).  He further states he should be awarded the CIB based on his service with an infantry unit for over 30 days.

3.  The applicant provides a valor award order and radiology report to support his request.

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 record shows the applicant initially enlisted in the Regular Army and entered active duty on 16 November 1964.  He was trained in and awarded military occupational specialty (MOS) 12A (Pioneer) on 2 April 1965, and progressed into MOS 12B (Combat Engineer) on 27 June 1966.

3.  On 26 June 1967, he was honorably discharged for the purpose of immediate reenlistment, and on 27 June 1967, he reenlisted for 6 years.  His DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 19 September 1967 through 28 November 1968.

4.  Item 38 (Record of Assignments) of the DA Form 20 shows during his tour of duty in the RVN, the applicant served in the units listed performing duties in the MOS and positions identified:

	a.  25 September-13 November 1967 - Company B, 86th Engineer Battalion, MOS 12B (Combat Construction Specialist);

	b.  14 November 1967-15 February 1965 - (Assigned) 595th Engineer Company, MOS 12B (Combat Construction Specialist)/Attached to Company A, 36th Engineer Battalion, MOS 12B (Heavy Vehicle Driver);

	c.  16 February 1968-30 April 1968 - (Assigned) 595th Engineer Company, MOS 12B (Combat Construction Specialist)/Attached to Company A, 36th Engineer Battalion, MOS 62G (Quarryman) and MOS 12B (Powderman); and 

	d.  1 May1968-28 November 1968 - Company A, 86th Engineer Battalion, MOS 12B (Combat Demolition Specialist).

5.  Item 40 (Wounds) of the DA Form 20 is blank and the PH and CIB are not included in the list of awards contained in item 41 (Awards and Decorations).  Item 41 shows he earned the following awards:

* Vietnam Service Medal (VSM)
* RVN Campaign Medal (RVNCM) with Device (1960)
* ARCOM with "V" (Valor) Device
* Sharpshooter Marksmanship Qualification Badge with Pistol Bar
* Marksman Marksmanship Qualification Badge with Rifle Bar

6.  The record contains no documents or orders indicating the applicant was awarded the PH or CIB by proper authority while serving on active duty.  It is also void of any medical treatment records showing he was treated for a combat related wound while serving in the RVN.
7.  On 17 March 1969, the applicant was discharged after completing 4 years and 2 months of creditable active duty service.  The DD Form 214 he was issued shows he earned the following awards:

* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge with Pistol Bar
* VSM with two bronze service stars
* RVNCM
* Marksman Marksmanship Qualification Badge with Rifle Bar
* ARCOM with "V" Device.

8.  During the processing of this case, a member of the Board's staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant's name was not included on the roster. 

9.  The award orders provided by the applicant confirm he was assigned to the 86th Engineer Battalion when he received the ARCOM with "V" Device for heroism in the RVN during the period 26 September through 21 October 1967.

10.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards policy.  Paragraph 2-8 contains guidance on the PH.  It states the PH is awarded to members wounded in action.  It also states in order to award the PH there must be evidence of the wound for which the award is being made was received as a result of enemy action; the wound required treatment by military medical personnel; and a record of the medical treatment was made a matter of official record.

11.  Chapter 8 of the awards regulation contains guidance on award of badges and tabs of United States origin.  Paragraph 8-6 contains guidance on award of the CIB.  It states the three basic requirements for the CIB are as follows:

	a.  be an infantryman satisfactorily performing infantry duties; 

	b.  be assigned to an infantry unit during such time as the unit is engaged in active ground combat; and 

	c.  actively participate in such ground combat. 

12.  Army Regulation 600-8-22 states combat service alone does not qualify a member for the CIB.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention he should be awarded the PH and CIB has been carefully considered.  However, the evidence of record and independent evidence submitted by the applicant fails to support this claim.

2.  By regulation, in order to support award of the PH the member must have been wounded in action and there must be evidence the wound for which the award is being made was received as a result of enemy action; member must have required medical treatment by military medical personnel; and this medical treatment must have been made a matter of official record.

3.  The evidence of record fails to show the applicant was wounded in action or treated for a combat related wound while serving in the RVN.  Item 40 of his DA Form 20 is blank, and the PH is not included in the list of earned awards in item 41.  His name is not included on the Vietnam Casualty Roster, the official DA list of RVN casualties.  As a result, the regulatory burden of proof necessary to support award of the PH has not been met.  As a result, the evidence does not support award of the PH.

4.  The applicant's contention that he should be awarded the CIB based on 30 days of service in an infantry unit has also been carefully considered.  However, by regulation, there are three basic requirements for award of the CIB. These are the member hold and served in an infantry MOS; the member served in an infantry unit of brigade, regimental, or smaller size; and that the member be personally present and participate with his qualifying infantry unit while it is engaged in active ground combat with enemy forces.

5.  The record fails to show the applicant served in an infantry unit while in the RVN.  The entries in item 38 of his DA Form 20 confirm he was assigned or attached to only Engineer units, and that he performed duties in non-infantry MOSs.  Thus, the regulatory criteria necessary to award the CIB has not been met.  As a result, the evidence is no sufficient to grant this portion of the requested relief.

6.  The applicant and all others concerned should know 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)                                         AR20090016410



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ABCMR Record of Proceedings (cont)                                         AR20090016410



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