IN THE CASE OF:	  

		BOARD DATE:	  22 September 2011

		DOCKET NUMBER:  AR20110006123 


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.

2.  The applicant states he did not receive a Purple Heart for shrapnel wounds to his hand that he received in a firefight on 5 April 1968.  He received treatment at the 4th Medical Battalion and the 71st Evacuation Hospital in Vietnam.  In addition, his DD Form 214 does not reflect his Combat Infantryman Badge. 

3.  The applicant provides a Standard Form 89 (Report of Medical History).

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 records show he was inducted into the Army of the United States on 7 September 1967 and he held military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He served in Vietnam from 20 February 1968 to 4 February 1969 while assigned to the 1st Battalion, 35th Infantry, 4th Infantry Division.

3.  On 5 September 1969, he was honorably released from active duty and he was transferred to the U.S. Army Reserve.  He completed 1 year, 11 months, and 29 days of creditable active service.

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

5.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) is blank and item 41 (Awards and Decorations) does not show the Purple Heart or the Combat Infantryman Badge.

6.  His records do not contain orders that show he was awarded the Purple Heart or the Combat Infantryman Badge.

7.  There is no medical evidence in the applicant's available record that shows he was wounded as a result of hostile action during his active service.

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

9.  Review of The Adjutant General's Office, Casualty Division's Vietnam casualty listing failed to show the applicant's name as a casualty.

10.  The applicant provides a Standard Form 89, dated 22 April 1968, wherein it stated the applicant received a fragment wound to the third right finger on 5 April 1968 at Kon Tum, Vietnam to his right 3rd finger.

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that 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.
12.  Army Regulation 600-8-22 (Military Awards) provides that the Combat Infantryman Badge is awarded to infantry officers, 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.  The criteria for the Purple Heart requires the submission of substantiating evidence to verify that the wound/injury was the result of hostile action, the wound/injury must have required medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.

2.  The applicant provided a Standard Form 89 that showed he received a fragment wound to his right third finger while in Vietnam.  However, the evidence of record does not show, and the evidence he provided does not show that he received this wound/injury as a result of hostile action.  His name is not listed on the Vietnam casualty roster and his DA Form 20 does not indicate he received a combat-related wound.  

3.  Notwithstanding the applicant's sincerity, in the absence of additional documentary evidence that conclusively show he was wounded as a result of enemy action there is insufficient evidence upon which to base award of the Purple Heart.

4.  There are basically three requirements for award of the Combat Infantryman Badge.  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.

5.  The applicant's infantry MOS and his assignment to an infantry unit during his service in Vietnam are not in question.  However, his records do not contain orders awarding him the Combat Infantryman Badge and item 41 of his DA Form 20 does not show award of the Combat Infantryman Badge.  There is no evidence in the available records and he did not submit any evidence that shows he was personally present and under hostile fire while his unit was actively engaged in ground combat with the enemy.

6.  In the absence of official orders or other documentary evidence such as operation reports, after action reports, valor awards, witness statements, or any other evidence that conclusively shows he actively participated in ground combat, regrettably, there is insufficient evidence upon which to base award of the Combat Infantryman Badge in this case.

7.  Nevertheless, this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20110006123





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ABCMR Record of Proceedings (cont)                                         AR20110006123



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