IN THE CASE OF:	  

		BOARD DATE:	  9 December 2010

		DOCKET NUMBER:  AR20100015611 


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 once he was medically evacuated from Vietnam to a hospital ship.  He also states he was evacuated once to Saigon for injuries he received during a missile attack while trying to land a helicopter a smoke grenade blew up in his face. 

3.  The applicant provides:

* VA Form 21-4138 (Statement in Support of Claim)
* Chronological Records of Medical Care
* Consultation Sheet
* Radiographic Report

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 was initially inducted into the Army of the United States on 12 October 1967.  However, he was honorably discharged on 18 October 1967 for the purpose of immediate reenlistment and subsequently executed a 3-year enlistment in the Regular Army on 19 October 1967. 

3.  He completed the training requirements and he was awarded military occupational specialty (MOS) 31B (Field Radio Repairman).  He served in Vietnam from 2 May 1968 to 1 June 1970 as follows:

* in MOS 31B with Headquarters and Headquarters Company, 1st Battalion, 502nd Infantry, from 10 May to 16 July 1968
* in MOS 57H (Winch Operator) with the 154th Transportation Company, from 17 July to 16 August 1968
* in MOS 05C (Radio Teletype Operator) with the 71st Transportation Battalion from 17 August to 26 November 1968
* in MOS 05C with the 154th Transportation Company from 27 November 1968 to 31 August 1969
* in MOS 31B with the 71st Transportation Battalion from 1 September 1969 to an unknown date

4.  He was honorably released from active duty on 2 June 1970 and 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 and his 
DD Form 215 (Correction to DD Form 214) show he was awarded the National Defense Service Medal, Vietnam Service Medal with a silver service star and two bronze service stars, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Meritorious Unit Commendation, Army Good Conduct Medal, Vietnam Campaign Medal, and Expert Marksmanship Qualification Badge with Rifle Bar.

6.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) contains no entries.  Item 41 (Awards and Decorations) of this form does not list the Purple Heart or the CIB.

7.  His name is not listed 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, does not contain Purple Heart or CIB orders.

10.  His official medical records are not available for review with this case; however, he submitted the following documents:

	a.  A VA Form 21-438 wherein he claims service-connected disability compensation for an incident related to a smoke grenade that exploded in his face while he was trying to land a helicopter.  He was medically evacuated and subsequently treated for 2 days.  He was then transferred to Da Nang hospital and ultimately to a hospital ship where he stayed for 1 week.  He was kept out of combat due to his vision problems. 

	b.  Chronological record of medical care, dated on various dates in 1968 relating to an eye injury resulting from the explosion of a smoke grenade and the subsequent treatment he received. 

	c.  Chronological record of medical care, dated 2 March 1970, that shows he was treated subsequent to a cable falling on his toe. 

11.  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.  The applicant contends his DD Form 214 should be corrected to show the Purple Heart and the CIB.

2.  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 the decoration.

3.  The medical documents he submitted show he was treated for an injury resulting from a cable that fell on his toe and a smoke grenade that exploded and injured his eyes.  However, there is no evidence that either injury was caused by enemy action.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

4.  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 show 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.

5.  The applicant's 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.  He held a communications MOS.  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 an assigned infantry position in an infantry unit and he actively engaged in ground combat with the enemy.  Therefore, there is insufficient evidence upon which to base award of the CIB in this case.

6.  This action 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)                                         AR20100015611



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ABCMR Record of Proceedings (cont)                                         AR20100015611



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