IN THE CASE OF:	  

		BOARD DATE:	  2 September 2010

		DOCKET NUMBER:  AR20100009934 


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 Purple Heart and Combat Infantryman Badge (CIB).

2.  The applicant states he was injured by combat fire between Dau Chang and Tay Ninh, Vietnam,  while riding as a gunner in a military convoy.  He suffered a head wound and was transported to a field surgical hospital for treatment.  He does not remember the details because he was unconscious at the time.  He was awarded the Purple Heart, but he declined to accept it because of emotional reasons.  He and his fellow service members would see dignitaries fly over and never set foot in the ground or serve in combat, yet still receive the medal.  He felt this was an injustice and the only way he could voice his opinion at the time was to decline the medals and commendations he earned.  Now, after many years, he would like his family to have these commendations.  He wants to show everyone that even in the worst of times he is a true American and served his country to the best of his ability, even to the point of death.

3.  The applicant did not provide any additional documentary evidence.

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 records show he enlisted in the Regular Army for a period of 3 years on 5 August 1966.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 51A (Construction and Utilities Worker) on 17 March 1967.

3.  His records show he served in Vietnam from on or about 20 July 1967 to on or about 19 July 1968 as follows:

* in MOS 71B (Clerk Typist) with Headquarters and Headquarters Company, 3rd Brigade, 25th Infantry Division, from 1 August 1967 to 3 December 1967
* in MOS 05B (Radio Operator) with Company E, 65th Engineer Battalion, from 3 December 1967 to 12 July 1968

4.  He was honorably released from active duty on 12 May 1968 and he was transferred to the U.S. Army Reserve Control Group for completion of his Reserve obligation.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded the National Defense Service Medal, Vietnam Service Medal with one bronze service star, Republic of Vietnam Campaign Medal with Device (1960), two overseas service bars, and Marksman Marksmanship Qualification Badge with Rifle Bar.

6.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) is blank.  Item 41 (Awards and Decorations) of this form does not list the Purple Heart or the CIB.

7.  His medical records are not available for review with this case and his name is not shown on the Vietnam casualty roster.

8.  There are no general orders in his records that show he was awarded the Purple Heart or special orders that show award of the CIB.

9.  A review of the Awards and Decorations Computer Assisted Retrieval System maintained by the Military Awards Branch of the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any Purple Heart or CIB orders on file for him.

10.  He underwent a separation physical prior to his release from active duty and indicated that there was no change in his medical history.

11.  On 23 and 24 August 2010 during the processing of this case, a member of the Board staff called the telephone number listed on his application in an attempt to obtain copies of orders, medical records, witness statements, award recommendations, or other documentary evidence pertaining to the requested awards; however, the applicant did not answer.

12.  Army Regulation 600-8-22 (Military Awards) provides for the following awards:

	a.  The Purple Heart is awarded for a wound sustained in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify 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.

	b.  The CIB 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.  Campaign or battle credit alone is not sufficient for award of the CIB.  Additionally, appendix V of U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) provides that during the Vietnam era the CIB was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11D, 11F, 11G, or 11H.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the Purple Heart, the Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather an individual is entitled to it upon meeting specific criteria.  When contemplating an award of this decoration, the key issue that must be taken into consideration is the degree to which the enemy caused the injury.  The fact that a proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but it is not the sole justification for award.
2.  In this case, the applicant's record is void of any orders that show he was awarded the Purple Heart, his name is not shown on the Vietnam casualty roster, his DA Form 20 does not indicate any combat wounds, and his medical records are not available for review.  Notwithstanding his sincerity, in the absence of additional documentation that conclusively shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case.

3.  With respect to the CIB, his service in Vietnam and his initial assignment to an infantry brigade are not in question.  However, the CIB is awarded to infantry Soldiers who have an infantry MOS.  In his case, there is no evidence in the available records and he did not submit substantiating evidence that shows he held an infantry MOS or that he was personally present and under hostile fire while serving in his assigned infantry duty in an infantry unit that was actively engaged in ground combat with the enemy.  Therefore, there is insufficient evidence upon which to base award of the CIB in this case

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)                                         AR20100009934



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)