BOARD DATE:	  3 February 2011

		DOCKET NUMBER:  AR20100020184 


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 award of the Purple Heart (PH) and the Combat Infantryman Badge (CIB).  

2.  The applicant states he should have received these awards based on the evidence he is providing.  

3.  The applicant provides a third-party statement, 23rd Infantry Division Tactical Area certificate, and a Department of Veterans Affairs (VA) rating decision.

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 enlisted in the Regular Army on 20 March 1968. He was trained in and awarded military occupational specialty 71B (Clerk-Typist).  His record further shows he was advanced to the rank/grade of specialist four (SP4)/E-4 on 23 March 1969, which is the highest rank he attained while serving on active duty.

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 23 August 1968 through 5 November 1969.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Advisor Team 24, II Corps, U.S. Army Pacific (USARPAC), performing duties in MOS 71B as a clerk-typist.

4.  Item 40 (Wounds) of the applicant’s DA Form 20 is blank and the PH and CIB are not included in the list of awards contained in item 41 (Awards and Decorations).  Item 48 (Date of Audit) shows the applicant last audited the DA Form 20 on 5 February 1970.

5.  The applicant’s record is void of any documents indicating he was ever recommended for or awarded the PH or CIB by proper authority while serving on active duty.  It is also void of any medical treatment records showing he was treated for a combat-related wound or injury during his RVN service.

6.  On 27 March 1970, the applicant was honorably released from active duty (REFRAD), in the rank/grade of SP4/E-4, after completing 2 years and 8 months of total active service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he earned the following awards during his active duty tenure:

* National Defense Service Medal
* Army Commendation Medal 
* Army Good Conduct Medal (1st Award)
* Vietnam Service Medal
* RVN Campaign Medal with Device (1960)
* 2 Overseas Service Bars
* Marksman Marksmanship Qualification Badge with Rifle Bar

7.  The applicant provides a third-party statement from an individual who indicates he was a combat medical corpsman in the RVN serving with the 71st Evacuation Hospital in the RVN in October 1968.  He claims at that time, he treated the applicant for shrapnel wounds to his legs.  

8.  The applicant also provides a certificate that indicates he was a member of the Military Assistance Command, Vietnam (MACV) and served as an advisor and assisted the Vietnamese Army’s 23rd Infantry Division and other Vietnamese units within the 23rd Division Tactical area.  Finally, he provides a VA rating decision, dated 12 February 2010, which shows he was granted service-connection for shell fragment wounds to his left finger.

9.  During the review of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam casualty roster.  There is no entry pertaining to the applicant on this roster.

10.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards policy.  Paragraph 2-8 contains guidance on the PH.  It states the PH is awarded to members wounded in action.  It also states in order to award the PH there must be evidence of the wound for which the award is being made was received as a result of enemy action; the wound required treatment by military medical personnel; and a record of the medical treatment was made a matter of official record.

11.  Chapter 8 of the awards regulation contains guidance on award of badges and tabs of United States origin.  Paragraph 8-6 contains guidance on award of the CIB.  It states the three basic requirements for the CIB are as follows:

	a.  be an infantryman satisfactorily performing infantry duties; 

	b.  be assigned to an infantry unit during such time as the unit is engaged in active ground combat; and 

	c.  actively participate in such ground combat. 

12.  Army Regulation 600-8-22 states combat service alone does not qualify a member for the CIB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention he should be awarded the PH and CIB has been carefully considered.  However, the evidence of record and independent evidence submitted by the applicant fails to support this claim.

2.  By regulation, in order to support award of the PH the member must have been wounded in action and there must be evidence the wound for which the 


award is being made was received as a result of enemy action; the member must have required medical treatment by military medical personnel; and this medical treatment must have been made a matter of official record.

3.  The third-party statement provided by the applicant while indicating he was treated for shell fragment wounds to his legs in the RVN in 1968, fails to confirm his wounds were received as a direct result of or were caused by enemy action.  

4.  The evidence of record fails to show the applicant was wounded in action or treated for a combat-related wound while serving in the RVN.  Item 40 of his DA Form 20 is blank, and the PH is not included in the list of awards in item 41.  His name is not included on the Vietnam casualty roster, the official DA list of RVN casualties.  As a result, the regulatory burden of proof necessary to support award of the PH has not been met and the evidence does not support award of the PH.

5.  The applicant's contention that he should be awarded the CIB based on his service with MACV as an advisor to the Vietnamese Army’s 23rd Infantry Division and other Vietnamese units has also been carefully considered.  However, by regulation, there are three basic requirements for award of the CIB.  These are the member hold and served in an infantry MOS; the member served in an infantry unit of brigade, regimental, or smaller size; and that the member be personally present and participate with his qualifying infantry unit while it is engaged in active ground combat with enemy forces.

6.  The certificate provided by the applicant while indicating he served as an advisor to Vietnamese units fails to indicate he participated in any direct combat operations with these units as an infantry advisor.  The record fails to show he served in an infantry unit while in the RVN or that his MACV advisor duties included performance as an infantryman.  In fact, entries in item 38 of his DA Form 20 confirm he performed duties in MOS 71B as a clerk-typist while serving with the 24th Advisory Group.  As a result, the regulatory criteria necessary to award the CIB has not been met.  Therefore, the evidence is not sufficient to grant this portion of the requested relief.

7.  The applicant and all others concerned should know this action related to award of the PH and CIB 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

________  ________  ________  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.



      _______________________
               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)                                         AR20100020184



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ABCMR Record of Proceedings (cont)                                         AR20100020184



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