IN THE CASE OF:	  

		BOARD DATE:	5 May 2010

		DOCKET NUMBER:  AR20100023946 


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 to be awarded the following:

* Purple Heart
* Combat Infantryman Badge (CIB) with two clusters [sic] [interpreted to mean the second award of the CIB]
* American Silver Star Medal [sic] [interpreted to mean the Silver Star]
* an additional award of the Air Medal [interpreted to mean the fifth award]

2.  The applicant states that his unit fought in combat and had numerous direct hostile encounters.  However, no one was tracking the unit's combat activities at the time.  He believes he is entitled to the requested awards and he is proud to have served his country.  On a Department of Veterans Affairs (VA) 
Form 21-4138 (Statement in Support of Claim), dated 19 August 2010, he further states:

	a.  He believes he is entitled to the Purple Heart because, while serving as the Headquarters Commandant at Pleiku, he was injured when he slipped in the bunker and fractured his left elbow while he was defending the perimeter of their base camp during a heavy attack by the Viet Cong.  He was evacuated by jeep at night and he spent 3 to 4 months in the hospital and underwent two operations.

	b.  He feels he is entitled to a second award of the CIB because he served two tours of duty in Vietnam.

	c.  He should receive the American Silver Star Medal [sic] because he was involved in rescuing service members during heavy combat while serving as the Senior Advisor to the 49th Army of the Republic of Vietnam (ARVN) Infantry Regiment.  These rescue missions involved helicopter extraction under heavy fire and occurred during his second tour.  This was about the same time that he was awarded the Vietnamese Cross of Gallantry.

	d.  He was performing continual fighting operations, to include flight operations.  He believes he is entitled to additional Air Medals.

3.  The applicant provides:

* VA Form 21-4138, dated 19 August 2010
* DD Form 214 (Report of Separation from the Armed Forces of the United States) for the period ending 3 September 1951
* DD Form 214 for the period ending 7 October 1953
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 30 September 1970
* VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative), dated 19 August 2010
* VA letter to the applicant, dated 7 April 2006, identifying the applicant as permanently and totally disabled, due to service-connected disability or disabilities
* VA letter to the applicant, dated 7 April 2006, identifying the applicant as 100-percent disabled due to service-connected disability or disabilities for the purposes of compensation
* VA letter to the applicant, dated 7 April 2006, identifying the applicant as 100-percent disabled due to service-connected disability or disabilities for the purpose of post exchange and commissary benefit entitlement
* Standard Form 502 (Clinical Record – Narrative Summary), dated 19 August 1966
* extract of Standard Form 89 (Report of Medical History), dated 6 April 1970 (2nd page)
* Special Orders Number 177, Headquarters, Department of the Army, dated 11 September 1970

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 has been advised of the required procedures for requesting award of the Silver Star by separate correspondence; therefore, that portion of his request will not be further discussed in this Record of Proceedings.

3.  The applicant's record shows he enlisted in the Regular Army for a 4-year term on 4 September 1947.  He attended and successfully completed the Officer Candidate Course conducted by the U.S. Army Infantry School located at Fort Benning, GA.  On 8 October 1953, he was appointed as a Reserve commissioned officer in the rank/pay grade of second lieutenant/O-1 and was awarded specialty 1542 (Infantry Unit Commander).

4.  His records show he served in the Republic of Vietnam during two separate tours as follows:

* from 27 April 1965 to 10 July 1965 while assigned to the Military Assistance Advisory Group, Vietnam, with duty at Pleiku, Vietnam
* from 28 June 1968 to 25 June 1969 while assigned to the U.S. Military Assistance Command, Vietnam

5.  On 30 September 1970, he was honorably retired.  His DD Form 214 shows he completed 23 years and 27 days of total active service with 7 years, 2 months, and 3 days of foreign service.  The highest rank/grade he attained while serving on active duty was lieutenant colonel/O-5.

6.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 for the period ending 30 September 1970 shows he was awarded the:

* National Defense Service Medal
* Commendation Ribbon with Metal Pendant and one oak leaf cluster
* Armed Forces Reserve Medal
* CIB
* Vietnam Service Medal
* 
Republic of Vietnam Campaign Medal with Device (1960)
* Air Medal with three oak leaf clusters
* Republic of Vietnam Gallantry Cross with Silver Star
* Legion of Merit
* two overseas service bars
* Vietnam Staff Service Honor Medal (First Class)

7.  There are no orders in his available records which show he was awarded the Purple Heart, a second award of the CIB, the Silver Star, or a fifth award of the Air Medal.

8.  His records reveal he was medically evacuated from Vietnam during his first tour of duty and he was assigned to Brooke Army Medical Center, Fort Sam Houston, TX, as a patient following evacuation.  However, his records do not characterize the injury which resulted in his evacuation as having been the result of enemy engagement.  Additionally, his name does not appear on the Vietnam casualty roster.

9.  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 pertaining to the applicant for the Purple Heart, a second award of the CIB, or a fifth award of the Air Medal.

10.  He provides:

	a.  Several VA letters, dated 7 April 2006, which state he is permanently and totally disabled due to service-connected disability or disabilities.  These letters do not specify the nature of his disabilities and they do not correlate these disabilities with his service in Vietnam.

	b.  A Standard Form 502 and Standard Form 89, dated 19 August 1966 and 6 April 1970, respectively, which document an injury to his left elbow sustained in Vietnam.  Neither form identifies the injury as resulting from enemy engagement.

11.  Army Regulation 600-8-22 (Military Awards) provides that 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, and the medical treatment must have been made a matter of official record.

12.  Army Regulation 600-8-22 states the CIB is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry military occupational specialty.  There are basically three requirements for award of the CIB.  The Soldier must be an infantryman satisfactorily performing infantry duties; he must be assigned to an infantry unit, of brigade, regimental, or smaller size during such time as the unit is engaged in active ground combat; and he must actively participate in such ground combat.

13.  Army Regulation 600-8-22 further states a separate award of the CIB has been authorized for qualified Soldiers in any of the four conflicts identified below. 
Subsequent awards of the CIB are not authorized for the same qualifying period. 
It is recognized by one award only regardless of whether a Soldier served one or multiple tours in any or all of these areas:

	a.  World War II (7 December 1941 to 3 September 1945);

	b.  Korean Conflict (27 June 1950 to 27 July 1953);

	c.  Vietnam Conflict (which includes service in the Republic of Vietnam (2 March 1961 to 28 March 1973) and qualifying service in Laos (19 April 1961 to 6 October 1962)), the Dominican Republic (28 April 1965 to 1 September 1966), Korea in the demilitarized zone (4 January 1969 to 31 March 1994), Grenada (23 October to 23 November 1983), Panama (20 December 1989 to 31 January 1990), and Persian Gulf War (17 January to 11 April 1991); and

	d.  Global War on Terrorism (which includes Afghanistan (Operation Enduring Freedom) and Iraq (Operation Iraqi Freedom)).

14.  Army Regulation 600-8-22 states the Air Medal is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  This award is primarily intended for personnel on flying status, but may also be awarded to those personnel whose combat duties require them to fly; for example, personnel in the attack elements of units involved in air-land assaults against an armed enemy.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

	a.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) provided guidelines for award of the Air Medal.  It stated that passenger personnel who did not participate in an air assault were not eligible for the award based upon sustained operations.  It defined terms and provided guidelines for the award based upon the number and types of missions or hours.  Twenty-five category I missions (air assault and equally dangerous missions) and accrual of a minimum of 25 hours of flight time while engaged in category I missions was the standard established for which sustained operations were deemed worthy of recognition by an award of the Air Medal.  However, the regulation was clear that these guidelines were considered only a departure point.

	b.  Combat missions were divided into three categories.  A category I mission was defined as a mission performed in an assault role in which a hostile force was engaged and was characterized by delivery of ordnance against the hostile force or delivery of friendly troops or supplies into the immediate combat operations area.  A category II mission was characterized by support rendered a friendly force immediately before, during, or immediately following a combat operation.  A category III mission was characterized by support of friendly forces not connected with an immediate combat operation but which must have been accomplished at altitudes which made the aircraft at times vulnerable to small arms fire or under hazardous weather or terrain conditions.

	c.  To be recommended for award of the Air Medal, an individual must have completed a minimum of 25 category I missions, 50 category II missions, or 100 category III missions.  Since various types of missions would have been completed in accumulating flight time toward award of an Air Medal for sustained operations, different computations would have had to be made to combine category I, II, and III flight times and adjust it to a common denominator.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the Purple Heart was carefully considered, but was determined to be without merit.  The evidence of record reveals he was injured and that injury required medical evacuation; however, it does not substantiate his wounds were the result of hostile action.  Additionally, his name does not appear on the Vietnam casualty roster.  Therefore, he is not entitled to award of the Purple Heart or to correction of his DD Form 214 to show this award.

2.  The applicant's contention that he should be awarded a second CIB was carefully considered.  The governing regulation states that subsequent awards of the CIB are not authorized for the same qualifying period; it is recognized by one award only, regardless of whether a Soldier served one or multiple tours in any or all of the qualifying conflicts.  The evidence of record reveals he served two separate tours of duty in Vietnam; however, in accordance with the governing regulation, he is only entitled to one award of the CIB for his service in Vietnam.  Therefore, he is not entitled to a second award of the CIB or to correction of his DD Form 214 to show a second CIB.

3.  The applicant's contention that his records should be corrected to show a fifth award of the Air Medal was carefully considered.  The evidence of record shows he received four awards of the Air Medal.  There is no evidence in the available records and the applicant did not submit any evidence to substantiate an award of a fifth Air Medal.  Therefore, he is not entitled to a fifth award of the Air Medal or to correction of his DD Form 214 to show this award.

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 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)                                         AR20100015543



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ABCMR Record of Proceedings (cont)                                         AR20100023946



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