BOARD DATE:	  28 April 2011

		DOCKET NUMBER:  AR20100024494 


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 the Combat Infantryman Badge.  He also requests to have his military occupational specialty (MOS) shown as 11B (Light Weapons Infantryman) instead of 94B (Cook).

2.  He states, in effect, he was not a cook during his military service.  He further states he was a door gunner while serving in the Republic of Vietnam (RVN) and he is requesting award of the CIB because he was a combat infantry Soldier.  He attests he is entitled to the Purple Heart because he sustained shrapnel wounds to his right arm, chest, and right thigh.  He attributes these errors to his belief that his records were confused with those of another Soldier of the same name throughout his military career.  He concludes he did not discover these errors on his DD Form 214 until he applied for a loan and it was brought to his attention.

3.  Although he states he has medical records showing he was wounded by shrapnel and that a review of his records will prove he was a door gunner with the infantry, he provides no additional evidence.

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 February 1967.  The highest rank/pay grade he attained while serving on active duty was specialist four (SP4)/E-4.  On 23 January 1969, he was released from active duty and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.

3.  His record contains the following pertinent documents:

	a.  A DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ), dated 5 May 1957, which shows he was attending the Field Class, Food Service Course at the time of his offense.

	b.  Special Orders Number 149, issued by Headquarters, 2nd Armored Cavalry, dated 3 July 1967, which show he was reassigned to
1st Reconnaissance Squadron, 2nd Armored Cavalry, effective on or about
3 July 1967.  His MOS is shown as 94B.

	c.  Special Orders Number 129, issued by 1st Reconnaissance Squadron, 2nd Armored Cavalry, dated 8 July 1967, which show he was reassigned to
B Troop, 1st Reconnaissance Squadron, 2nd Armored Cavalry, effective 5 July 1967, in order to complete on-the-job-training (OJT) in MOS 11D (Armor Reconnaissance Specialist).  His MOS is shown as 94B.

	d.  Special Orders Number 108, issued by Headquarters, 11th Combat Aviation Battalion, dated 20 April 1968, which show he was reassigned to the 213th Assault Helicopter Company.  His MOS is shown as 94B.  The special instructions portion of these orders contains the entry "None."

	e.  Unit Orders Number 49, issued by the 213th Assault Support Helicopter Company, dated 20 May 1968, which show he was advanced to SP4/E-4.  His MOS is shown as 94B.

	f.  A letter issued by Headquarters, 11th Combat Aviation Battalion, subject:  Gunner Statement, dated 6 September 1968, which shows the battalion surgeon confirmed the applicant was physically qualified under existing regulations to participate in regular and frequent aerial flight as a gunner.

	g.  Special Orders Number 249, issued by the same headquarters, dated
9 September 1968, which show he was reassigned to the 162nd Assault Helicopter Company.  His MOS is shown as 94B.  The special instructions portion of these orders contains the entry "For dy [duty] as 94B2O."

	h.  A Report of Medical History and Report of Medical Examination rendered at the time of his separation physical medical examination shows he did not indicate and the examining physician did not annotate that he had sustained any wounds during his period of service.

4.  His DA Form 20 (Enlisted Qualification Record) contains the following pertinent information:

	a.  Item 22 (MOSs) shows his primary MOS (PMOS) as 94B, effective 2 June 1967.  Item 22 also shows his secondary MOS (SMOS) as 67A (Aircraft Maintenance Apprentice), effective 23 September 1970.

	b.  Item 27 (Military Schools) shows he successfully completed the 8-week Cook course and he was awarded MOS 94B in 1967.

	c.  Item 31 (Foreign Service) shows he served an overseas tour of duty in the Republic of Vietnam from 24 January 1968 through 23 January 1969.

	d.  Item 38 (Record of Assignments) shows that following his completion of initial entry training, he served in duty MOS 94B throughout his active service.  It does not show he ever served in an infantry unit or as a door gunner at any time.

	e.  Item 40 (Wounds) is blank.

	f.  Item 41 (Awards and Decorations) does not show award of either the Purple Heart or the Combat Infantryman Badge.

5.  His DD Form 214 contains the following pertinent information:

	a.  Item 23a (Specialty Number and Title) shows he held MOS 94B2O and the title was "Cook."

	b.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not show award of either the Purple Heart or the Combat Infantryman Badge.

6.  There is no evidence in the available record and he has not provided any evidence showing:

	a.  he was awarded or recommended for award of the Purple Heart or Combat Infantryman Badge.

	b.  he sustained any injuries as a result of hostile action or that he was treated for wounds sustained as a result of hostile action.

	c.  he ever performed the duties of a door gunner or an infantryman in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.

7.  A 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 U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart or any other awards pertaining to the applicant.

8.  His name does not appear on the Vietnam casualty listing.

9.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained as a direct 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 military personnel, and the medical treatment must have been made a matter of official record.

10.  U.S. Army Vietnam Regulation 672-1 (Awards and Decorations) governed award of the CIB to Army forces operating in South Vietnam.  This regulation stated that criteria for award of the Combat Infantryman Badge identified the man who trained, lived, and fought as an infantryman and that 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, enlisted personnel, and to warrant officers who had an infantry specialty/MOS.  In addition to having an eligible 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.  His record is void of any evidence and he has not provided any evidence showing he sustained any injuries as a result of hostile action or that he was treated for wounds sustained as a result of hostile action.  Additionally, his record is void of any orders or other documents indicating he was awarded the Purple Heart by proper authority while serving on active duty.  A review of the ADCARS database failed to reveal any orders for the Purple Heart pertaining to the applicant and his name does not appear on the Vietnam casualty listing.  In view of the foregoing, there is an insufficient basis for awarding him the Purple Heart in this case.

2.  Although evidence shows he was scheduled to undergo OJT for MOS 11D, there is no indication he successfully completed this training or that he was awarded an infantry MOS as either his PMOS or SMOS.

3.  There is no evidence showing that he was ever awarded or recommended for award of the Combat Infantryman Badge.  By regulation, in order to support award of the Combat Infantryman Badge, there must not only be evidence that a member served in an infantry MOS in an infantry unit, but also that he was personally present and participated with the qualifying infantry unit while it was engaged in active ground combat with enemy forces.  The applicant's record is void of any evidence and he has failed to provide evidence that fulfills this requirement.  Accordingly, he is not entitled to award of the Combat Infantry Badge.

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)                                         AR20100024494



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ABCMR Record of Proceedings (cont)                                         AR20100024494



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