IN THE CASE OF:	  

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100016436 


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, in effect, award of the Purple Heart and the Combat Infantryman Badge.

2.  The applicant states his records indicate he served 4 months in the Republic of Vietnam.  He states he was injured in a combat assault in the Republic of Vietnam.  He states he is receiving Department of Veterans Affairs (VA) disability for the injury.

3.  The applicant provides copies of:

* a letter from the VA, dated 19 February 2009
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 was inducted into the Army of the United States on 2 October 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11C (Indirect Fire Crewman).

3.  The applicant was assigned to the 3rd Battalion, 506th Infantry, from 29 September 1970 to 3 December 1970 in the Republic of Vietnam.

4.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) is blank.

5.  Item 41 (Awards and Decorations) of his DA Form 20 does not show award of the Purple Heart or the Combat Infantryman Badge.

6.  There are no orders in the applicant's military personnel records jacket awarding him the Purple Heart or the Combat Infantryman Badge.

7.  A Standard Form 502 (Clinical Record - Narrative Summary), dated 13 May 1971, documents an injury to the applicant's right knee.  The form indicates he twisted his right knee when jumping from an assault helicopter.  There is no mention on the form as to whether or not the helicopter was engaged with the enemy at the time or that his injury was a result of enemy action.

8.  On 20 May 1971, the applicant was released from active duty.  He completed 1 year, 7 months, and 19 days of active service that was characterized as honorable.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not show he was awarded the Purple Heart or the Combat Infantryman Badge.

9.  The applicant's complete service medical records were not available for review.  His name does not appear on the Vietnam casualty listing.

10.  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 any orders for the Purple Heart for the applicant.

11.  Army Regulation 672-5-1 (Military Awards), then in effect, provided that the Purple Heart was awarded to any member of an Armed Force or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services, had been wounded, killed, or who had died as a result of a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record.

12.  U.S. Army Vietnam Regulation 672-1 (Awards and Decorations) specifically governed award of the Combat Infantryman Badge to Army forces operating in South Vietnam.  This regulation specifically stated that criteria for award of the Combat Infantryman Badge identified the man who trained, lived, and fought as an infantryman and the Combat Infantryman Badge was the unique award established to recognize the infantryman and only the infantryman for his service. 
Further, "the Combat Infantryman Badge is not an award for being shot at or for undergoing the hazards of day-to-day combat."  This regulation also stated the Combat Infantryman Badge was authorized for award to infantry officers and to enlisted and warrant officer persons who have an infantry MOS and required that they must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental, or smaller size.

13.  Title 38, U.S. Code, provides for the VA to make a determination and award compensation for disabilities which were incurred in or aggravated by active military service.  The VA does not make any determination as to whether an injury was received as a result of hostile action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the Purple Heart and the Combat Infantryman Badge.

2.  The history of the applicant's injury on the Standard Form 602 was noted.  However, there is no substantive evidence to show the helicopter was engaged with the enemy at the time he jumped from the helicopter or that he was under enemy fire at the time.

3.  The applicant contends he is receiving disability from the VA based on his knee injury.  The VA simply determines whether an injury was incurred in military service.  Its decision does not determine nor is it intended to determine whether the applicant's injuries were a result of hostile action.

4.  In the absence of military records which show the applicant was injured as a result of enemy action, there is insufficient evidence upon which to base award of the Purple Heart in this case.

5.  The regulation specifies that a recipient of the Combat Infantryman Badge must have an infantry MOS and must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental, or smaller size.

6.  The applicant held MOS 11C and he was assigned to an infantry battalion in the Republic of Vietnam.  However, there is no evidence of record and the applicant has not submitted any substantive evidence that shows he served in active ground combat.  Therefore, there is insufficient evidence to award the Combat Infantryman Badge in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices made by him in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      ____________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)                                         AR20100016436



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ABCMR Record of Proceedings (cont)                                         AR20100016436



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