IN THE CASE OF:	  

		BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100009444 


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 the Purple Heart (PH) and the Combat Infantryman Badge (CIB) be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states that he served in military occupational specialty (MOS) 11B (Infantryman) when he was wounded while actively participating in combat in Vietnam.

3.  The applicant provides copies of his DD Form 214 and PH certificate and his DD Form 214 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 military records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant's record shows he was inducted into the Army of the United States and entered active duty on 16 June 1969.  He was trained in and awarded MOS 11B in September 1969.  He was subsequently reclassified into 76Y (Supply/Unit Armorer).

4.  The applicant's record includes a Standard Form 89 (Report of Medical History) dated 21 April 1971.  It shows he was operated on for a gunshot wound he received while on a military mission in Cambodia in May 1970.

5.  The applicant's OMPF is void of any orders or other documents that indicate he was ever awarded or recommended for award of the PH or CIB by proper authority while serving on active duty.

6.  On 15 June 1971, the applicant was honorably released from active duty Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued at the time shows he earned the following awards:

* National Defense Service Medal (NDSM)
* Vietnam Service Medal (VSM)
* Expert Marksmanship Qualification Badge

7.  The DD Form 214 shows that the applicant completed a total of 2 years of active military service of which 6 months and 6 days was foreign service.  Item 30 (Remarks) shows he served in the Republic of Vietnam (RVN) from 22 November 1969 to 27 November 1970.

8.  The applicant provides a PH certificate which shows he received this award for wounds he received in action on 10 May 1970.

9.  During the processing of this case, a member of the Board staff reviewed the Vietnam Casualty Roster.  It shows he was wounded in hostile action on 11 May 1970 and served in MOS 11B with an infantry unit at that time.


10.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, that the PH is awarded to any member who has been wounded or killed in action.  A wound is defined as an injury to any part of the body from an outside force or agent sustained under conditions defined by this regulation.  It stipulates 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 a medical officer and a record of this treatment must have been made a matter of official record.

11.  Paragraph 2-13 of the awards regulation contains guidance on award of the Vietnam Service Medal.  It states that a bronze service star is authorized with this award for each RVN campaign a member is credited with participating in while serving in the RVN.  Appendix B shows that during the applicant’s service in Vietnam, he participated in the Vietnam Winter-Spring (1 November 1969 – 30 April 1970) and DA Sanctuary (1 May – 30 June 1970) campaigns.

12.  Chapter 8 of the awards regulation contains guidance on award of combat badges.  It states, in pertinent part, that the CIB is awarded to infantry officers and to enlisted and warrant officer personnel 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.  The awards regulation stipulates that combat service alone is not sufficient to support award of the CIB. In similar cases, the Military Awards Branch, Army Human Resources Command (HRC) has advised that during the Vietnam era, the CIB was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11F, 11G, or 11H.  

13.  Department of the Army General Order Number 8, dated in 1974, authorized the award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to all personnel assigned to the RVN from 8 February 1962 through 28 March 1973. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he earned the PH and CIB while serving in the RVN and that his DD Form 214 should be corrected to show these awards.  By regulation, in order to support award of the PH, there must be evidence showing a member was wounded in action that he was treated for this wound by military medical personnel and a record of the medical treatment must have been made a matter of official record.

2.  In this case, the evidence of record includes a Standard Form 89 which confirms the applicant was wounded in action during his RVN tour and as a result he received medical treatment.  In addition, the applicant’s name is listed on the DA Vietnam Casualty Roster, the official list of RVN battle casualties.  This official list and the medical evidence of record corroborates the applicant’s claim that he was awarded the PH.  As a result, the regulatory burden of proof necessary to support correcting the applicant's records to show award of the PH has been satisfied in this case.  Therefore, it would be appropriate to add this award to his separation document at this time.

3.  The evidence of record also confirms that while serving in the RVN, the applicant held an infantry MOS, served in a qualifying infantry unit and participated with this qualifying unit while it was engaged in combat action, as evidenced by his earning the PH.  Therefore, he meets the regulatory criteria necessary for award of the CIB, and it would also be appropriate to add this award to his record at this time.

4.  The record also confirms that based on his service and campaign participation in the RVN, the applicant is entitled to the RVN Gallantry Cross with Palm Unit Citation and two bronze service stars to be affixed to the Vietnam Service Medal. Thus, it would also be appropriate to add these awards to his record at this time.

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:

a. awarding him the Combat Infantryman Badge; and

b. amending Item 24 of his DD Form 214 by adding the Purple Heart,
Combat Infantryman Badge, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and two bronze service stars to be affixed to the Vietnam Service Medal; 

c. 
and by providing him a corrected separation document 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)                                         AR20100009444





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ABCMR Record of Proceedings (cont)                                         AR20100009444



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