IN THE CASE OF:	  

		BOARD DATE:	  1 March 2011

		DOCKET NUMBER:  AR20100021770 


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 Combat Infantryman Badge (CIB) and the Purple Heart.

2.  The applicant states he suffered a gunshot wound to his lower right leg while on active duty in Vietnam.  He further states that it was a friendly fire wound that occurred during an ambush by the Viet Cong (VC).

3.  The applicant provides:

	a.  A copy of a Department of Veterans Affairs (VA) Form 21-6782 (Original Disability Compensation) for a wound to the lower right leg.

	b.  A copy of a Patient’s Medical Status Report, dated 11 July 1969, indicating the applicant sustained a gunshot wound to the left leg on 31 May 1969, which required surgery and skin grafts.  The injury was deemed a non-battle injury.

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 U.S. Army Reserve (USAR) in Akron, OH on
19 January 1964 for a period of 6 years.  He was ordered to active duty for training (ADT) on 21 March 1964.

3.  He completed his basic training at Fort Jackson, SC and his advanced individual training as a light weapons infantryman at Fort Polk, LA before being released from ADT on 20 September 1964 and being transferred back to his USAR unit.

4.  On 22 June 1968 he was involuntarily ordered to active duty at Fort Carson, CO, where he remained until he was transferred to Vietnam on 3 May 1969 for assignment to Company D, 4th Battalion, 3rd Infantry Regiment, 11th Infantry Brigade, 23rd Infantry Division.    

5.  On 15 June 1969 he was medically evacuated to a hospital in Japan and on 14 August 1969 he was transferred to Ireland Army Hospital at Fort Knox, KY, where he remained until he was honorably released from active duty (REFRAD) on 18 August 1969 and transferred to the USAR Control Group (Reinforcement) to complete his remaining Reserve obligation.

6.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time of his REFRAD shows he served 1 year, 1 month, and 27 days of active service during his recall, of which 4 months and 28 days were served in Vietnam.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the:

* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Expert Infantryman Badge


7.  A review of the applicant's official records failed to show any indication that he was wounded as a result of enemy action or that he was awarded either the Purple Heart or the CIB.  Additionally, his name is not contained on the Vietnam casualty listing.

8.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for the Purple Heart or the Combat Infantryman Badge pertaining to the applicant.

9.  Army Regulation 600-8-22 (Military Awards) states 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.  It also provides that individuals wounded or killed as a result of friendly fire in the heat of battle will be awarded the Purple Heart as long as the friendly projectile was released with the intent of inflicting damage or destroying enemy troops or equipment.

10.  Army Regulation 600-8-22 states the Combat Infantryman Badge 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.

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant’s claim that he was wounded by friendly fire as a result of an ambush by enemy forces is not in doubt, there is no evidence of record and the applicant has failed to show through the evidence submitted with his application that such was the case. 

2.  The evidence in this case simply does not show that his wound was the result of enemy action or friendly fire and absent such evidence there is insufficient evidence in which to award him the Purple Heart at this time.

3.  Additionally, absent evidence to show that the applicant engaged the enemy in Vietnam while assigned to an infantry unit there is insufficient evidence to award him the CIB at this time as well.  


4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.  Therefore, there is no basis for granting the applicant's requested relief.

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 that 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 that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  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)                                         AR20100021770



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ABCMR Record of Proceedings (cont)                                         AR20100021770



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