BOARD DATE:	  2 August 2011

		DOCKET NUMBER:  AR20110001370 


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 that he be awarded the Combat Infantryman Badge (CIB) and the Purple Heart.  He also requests that his records be corrected to show 2 days of lost time instead of 5 days.

2.  The applicant states that he served 10 months in a combat zone and never received the CIB.  He goes on to state that he was also wounded in combat and never received the Purple Heart; however, his records should show where his hand was sewn up.  Additionally, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) incorrectly reflects 5 days of lost time when he was only absent without leave (AWOL) from Saturday to Sunday 
(2 days).

3.  The applicant provides a copy of his DD Form 214.

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.  On 7 July 1967, the applicant was inducted into the Army of the United States with a moral waiver and he was transferred to Fort Benning, Georgia to undergo basic combat training (BCT).

3.  On 9 August 1967, nonjudicial punishment (NJP) was imposed against him for being AWOL from 3 to 8 August 1967.  His punishment consisted of a forfeiture of $45.00 for 2 months and 14 days of extra duty.  The applicant signed the DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) and there is no evidence that he elected to appeal the punishment.

4.  He completed his BCT and was transferred to Fort Polk, Louisiana to undergo advanced individual training (AIT) as a light weapons infantryman.  He completed AIT and received orders transferring him to Vietnam.  However, he was deferred from that assignment because his brother was serving in Vietnam at the time.  

5.  On 21 December 1967, the applicant was transferred to Korea and assigned to Headquarters and Headquarters Company, 2d Battalion, 23d Infantry Regiment, 2d Infantry Division.  On 22 April 1968, orders were published entitling him to hostile fire pay.  He was promoted to the rank of sergeant (SGT) on 
13 November 1968. 

6.  He departed Korea on 12 February 1969 and was transferred to Fort Lewis, Washington where he was honorably released from active duty on 13 February 1969 as an overseas returnee.  He had served 1 year, 7 months, and 2 days of active service and he had 5 days of lost time due to being AWOL.  His DD Form 214 shows award of the National Defense Service Medal and the Armed Forces Expeditionary Medal.

7.  Army Regulation 600-8-22  (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.

8.  Army Regulation 15-185, Paragraph 2-5, Section II, the regulation under which this Board operates, states the ABCMR will not consider any application if it determines that an individual has not exhausted all administrative remedies available to them.  
9.  Army Regulation 600-8-22 states 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 during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.

10.  Army Regulation 600-8-22 states special provisions exist for Soldiers who served in Korea subsequent to 4 January 1969.  Soldiers must have served in the hostile fire area at least 60 days and be authorized hostile fire pay.  The Soldier must have been assigned to an infantry unit of company or smaller size and must have been an infantry officer in the grade of captain or lower or in the case of warrant officers and enlisted men must have had an infantry military occupational specialty.  The Soldier must have been engaged with the enemy in the hostile fire area or in active ground combat involving an exchange of small arms fire at least five times.  The Soldier must have been recommended personally by each commander in the chain of command and approved at the division level.  There are no provisions for retroactive award of the CIB for Korean veterans.

11.  Effective 11 January 2007, the special requirements for award of the CIB for service in the Republic of Korea on the demilitarized zone is rescinded.  Army veterans and service members who served in Korea on or after 28 July 1953 and meet the criteria for award of the CIB may submit an application (to include supporting documentation) for award of the badge to Commander, U.S. Army Human Resources Command, ATTN:  AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  Retroactive awards under these criteria are not authorized for service prior to 29 July 1953.)

12.  A review of his official records failed to show any evidence of the applicant being wounded or injured as a result of enemy action or that he was awarded the CIB.  There is also no evidence to show that he has applied to the Human Resource Command (HRC) for award of the CIB for his service in Korea.  Accordingly, until he has exhausted his administrative remedies by submitting a request to the HRC, no further discussion of award of the CIB will be made in these proceedings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was wounded in action in Korea has been noted and appears to lack merit.  The applicant has provided no evidence and his records contain no evidence to show he was wounded in Korea or that treatment for such wounds was made a matter of record.

2.  Therefore, in the absence of such evidence, there appears to be no basis to justify award of the Purple Heart at this time.

3.  The applicant’s contention that he had only 2 days of lost time instead of the 5 days as reflected on his DD Form 214 has been noted.  However, the applicant received NJP for being AWOL 5 days while he was in a basic training status and the instrument of punishment is a matter of record.  There is no evidence that he appealed his punishment.  Accordingly, there appears to be no basis to change the number of days of lost time that is on his DD Form 214.

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.  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)                                         AR20110001370



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ABCMR Record of Proceedings (cont)                                         AR20110001370



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