IN THE CASE OF:
BOARD DATE: 28 October 2010
DOCKET NUMBER: AR20100012481
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 that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to add the Purple Heart with 2nd Oak Leaf Cluster, Army Commendation Medal (ARCOM), and Combat Infantryman Badge (CIB).
2. The applicant states his Vietnam service should be recognized.
3. The applicant provides copies of his DD Form 214, Purple Heart orders and certificate, a DA Form 2496 (Disposition Form) from his unit's adjutant, ARCOM orders, and CIB orders.
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 enlisted in the Regular Army on 27 December 1968, was awarded military occupational specialty (MOS) 11E (Armor Crewman), served in Vietnam from 15 August 1969 to 14 August 1970, and was promoted to pay grade E-4. He was honorably released from active duty on 15 August 1970. Since his DD Form 214 has the ARCOM entered as an authorized award, this portion of his request will not be discussed further in these proceedings.
3. The orders and certificate provided by the applicant show he was awarded the Purple Heart for wounds incurred on 21 February 1970 and the CIB by orders dated 15 August 1970. The orders for the CIB show the applicant's MOS as 11D. The DA Form 2496 provided by the applicant shows he was not given the medals for his ARCOM or Purple Heart with 2nd Oak Leaf Cluster. However, "Purple Heart (2nd oak leaf)" is entered between the last line of the DA Form 2496 and the authority line and is in a different font than the other entries in the form.
4. The applicant's military personnel records jacket does not contain record copies of the orders submitted by the applicant.
5. The applicant's DA Form 20 (Enlisted Qualification Record) does not show the awards which the applicant is requesting to be added to his DD Form 214. Item 40 (Wounds) of his DA Form 20 is blank.
6. The Vietnam casualty list does not contain the applicant's name.
7. A review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal record copies of any of the orders provided by the applicant.
8. Army Regulation 600-8-22 (Military Awards) provides that 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. 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. While it is highly unusual for a Soldier's records (when an entire military record is available, as it is in the applicant's case) to be totally void of evidence of award and/or badge orders, it must be presumed that this was caused by the applicant being given these awards and badges in such close proximity to his separation.
2. It is also noteworthy that the applicant's wound was not reflected on the Vietnam casualty list and that he was awarded the CIB even though he did not have a qualifying MOS (while the CIB orders provided by the applicant show him in MOS 11D, which is a qualifying MOS, his records do not show he was awarded this MOS).
3. In the absence of evidence to show the orders submitted by the applicant are not valid, it would be appropriate to add the Purple Heart and CIB to his DD Form 214.
4. However, while the DF from the applicant's unit indicated he was awarded the Purple Heart with 2nd Oak Leaf Cluster, there is no evidence to show he was awarded more than one Purple Heart.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
_____X___ ____X___ ___X____ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined the evidence presented is 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 adding to his DD Form 214 the Purple Heart and CIB.
2. The Board further determined 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 showing he was awarded any oak leaf clusters for his Purple Heart.
_____________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) AR20100012481
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ABCMR Record of Proceedings (cont) AR20100012481
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