IN THE CASE OF:	  

		BOARD DATE:	  17 May 2011

		DOCKET NUMBER:  AR20100027272 


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 Combat Infantryman Badge and a second award of the Purple Heart. 

2.  The applicant states that he received injuries about a week apart in June 1968 in Vietnam and believes one Purple Heart was left off his DD Form 214 because the dates were so close together.  He adds that the CIB never caught up to him.

3.  The applicant provides his DD Form 214, two Purple Heart Certificates, and a Vietnam Combat Certificate.

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's military records show he was inducted into the Army of the United States on 21 November 1967.  He completed initial entry training, was awarded the military occupational specialty of light weapons infantryman, and was promoted to pay grade E-4.

3.  His DA Form 20 (Enlisted Qualification Record) shows he performed duties as a rifleman while assigned to Company B, 2d Battalion, 8th Cavalry, 1st Cavalry Division (Airmobile) while in the Republic of Vietnam during the period 14 May to 19 July 1968.

4.  Item 40 (Wounds) of his DA Form 20 shows he received multiple fragment wounds to his left leg and neck on 24 June 1968.

5.  His records contain a Western Union notification and a message both of which indicate he was slightly wounded on 24 June 1968 when he was hit with fragments from a hostile booby trap.

6.  Headquarters, 1st Cavalry Division (Airmobile) General Orders Number 6155, dated 25 June 1968, awarded him the Purple Heart for wounds received in connection with military operations against a hostile force on 24 June 1968.

7.  He was honorably released from active duty on 20 November 1969 after completing 2 years of creditable active service.

8.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded the National Defense Service Medal, Vietnam Service Medal with two bronze stars, Republic of Vietnam Campaign Medal with 1960 Device, Purple Heart, Army Good Conduct Medal (1st Award), Expert Marksmanship Qualification Badge with Rifle Bar (M-14), and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

9.  Review of the Vietnam Casualty List shows he was listed as "hostile wounded in action, not serious, hospitalized" on 24 June 1968.  The list shows the primary cause of his wound as booby trap connected.

10.  His records do not contain any evidence that indicates he was awarded a second Purple Heart by proper authority.

11.  The applicant provided:

	a.  a Purple Heart Certificate for wounds received in action on 23 June 1968, dated 26 June 1968; 
	b.  a Purple Heart Certificate for wounds received in action on 24 June 1968, dated 25 June 1968; and

	c.  a 1st Cavalry Division Airmobile Vietnam Combat Certificate recognizing the applicant for faithfully serving his country with Company B, 2d Battalion, 8th Cavalry of the 1st Cavalry Division (Airmobile) in the Republic of Vietnam.

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

13.  Army Regulation 600-8-22 provides that 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.  Additionally, Appendix V of U.S. Army Vietnam (USARV) 672-1 provides that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11D, 11F, 11G, or 11H.  It further states that combat service alone is not a sufficient basis to support award of the Combat Infantryman Badge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DA Form 20 shows he received multiple fragment wounds on 24 June 1968.  His name is listed on the Vietnam Casualty List validating that he was wounded in action on 24 June 1968.  General Orders 6155 awarded him the Purple Heart for wounds received on 24 June 1968.  As such, it appears that his records correctly show one award of the Purple Heart.

2.  There is no evidence of a second award of the Purple Heart other than the certificate submitted by the applicant.  Army regulations state that award certificates alone will not be used as a basis for entering a decoration on the applicant’s DD Form 214.  In the absence of corroborating evidence he was wounded or injured on a second occasion as a result of hostile action, treated for such wounds, and that it was made a matter of official record, there is insufficient evidence upon which to base award of a second Purple Heart.  As a result, the regulatory burden of proof necessary to support a second award of the Purple Heart has not been satisfied in this case.  Therefore, there is insufficient evidence to show award of a second Purple Heart.

3.  By regulation, in order to support award of the Combat Infantryman Badge, a member must have been awarded and served in an infantry MOS while assigned to an infantry unit in addition to evidence that the Soldier was personally present and participated with the qualifying infantry unit while it was engaged in active ground combat with enemy forces.  Combat service alone is not a sufficient basis to support award of the Combat Infantryman Badge and there is no evidence in the available records and he did not provide sufficient evidence to corroborate that he personally engaged in active ground combat with enemy forces.  While evidence shows he was wounded by a booby trap that is not being engaged by the enemy.  Absent evidence he was engaged by the enemy, there is insufficient evidence to show he met the eligibility criteria for award of the Combat Infantryman Badge.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board believed there was sufficient evidence to grant partial relief.  The evidence reflects he was wounded while "on a combat operation" on an "S&C" mission.  The wounds he received were the result of an instrumentality of war designed to inflict injuries upon U.S. Soldiers.  Therefore, the Board believed the applicant was serving in active ground combat with the enemy and is eligible for award of the Combat Infantryman Badge.

2.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding him the Combat Infantryman Badge and adding it to his DD Form 214.

3.  In regard to award of a second Purple Heart, the Board believed that the evidence presented did not demonstrate the existence of a probable error or 


injustice and that the overall merits of this case are insufficient as a basis for correction of his records to show he was awarded a second Purple Heart.




      _______ _XXX   _______   ___
               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)                                         AR20100027272



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ABCMR Record of Proceedings (cont)                                         AR20100027272



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