IN THE CASE OF:	  

		BOARD DATE:	  14 February 2012

		DOCKET NUMBER:  AR20110016100 


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 award of the Purple Heart (PH) and Combat Infantryman Badge (CIB).

2.  The applicant states:

a. he deserves the PH and CIB for shrapnel wounds he received; 

b. he did not serve in a simple capacity; and

   c.  he spent several months in charge of a section of a bunker line in Cu Chi, Vietnam prior to his discharge.

3.  The applicant provides no additional documents.

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 record shows he enlisted in the Regular Army on 18 November 1966.  He held and served in military occupational specialty 76Y (Unit Supply Specialist).

3.  His DA Form 20 (Enlisted Qualification Record) shows he served in the following foreign areas with the units indicated for the periods shown:

* Korea - Headquarters and Headquarters Company, 2nd Supply and Transportation Battalion - (8 April- 27 December 1967)
* Republic of Vietnam (RVN) - Company A, 125th Signal Battalion, 25th Infantry Division - (29 January 1968 - 23 June 1969)

4.  Item 40 (Wounds) of the DA Form 20 is blank and the PH and CIB are not included among the list of awards shown in item 41 (Awards and Decorations).  His record is also void of any orders or other documents that indicate he was ever recommended for or awarded the PH or CIB by proper authority while serving on active duty.

5.  The applicant’s record is also void of any medical treatment records that show he was ever treated for a combat related wound or injury during his tenure on active duty.

6.  On 23 June 1969, the applicant was honorably released from active duty after completing a total of 2 years, 7 months, and 6 days of active military service.  The DD Form 214 issued at that time shows in Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) that he earned the following awards:

* Army Commendation Medal
* National Defense Service Medal
* Vietnam Service Medal
* RVN Campaign Medal
* RVN Gallantry Cross with Palm Unit Citation
* Overseas Service Bar

7.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty List.  The applicant's name is not included on this casualty list.

8.  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 United States Army Human Resources Command, failed to reveal any orders for the PH or CIB awards pertaining to the applicant.

9.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.

   a.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that the PH is awarded to any member who has been wounded or killed in action. A wound is defined as an injury to any part of the body from an outside force or agent sustained under conditions defined by this regulation.  It stipulates that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that it required treatment by a medical officer and a record of this treatment must have been made a matter of official record.
   
   b.  Chapter 8 of the awards regulation contains guidance on award of combat badges.  It states that the CIB is awarded to infantry officers and to enlisted and warrant officer personnel 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.  The awards regulation stipulates that combat service alone is not sufficient to support award of the CIB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he is entitled to two awards of the PH and CIB were carefully considered.  However, there is insufficient evidence to support his claim.

2.  By regulation, in order to support award of the PH, it is necessary to establish that the wound for which the award is being made was received as a direct result of or was caused by enemy action, that the wound was treated by military medical personnel and a record of this treatment must have been made a matter of official record.

3.  Item 40 of the DA Form 20 is blank indicating the applicant was not wounded in action.  His record is void of any orders or other documents that show he was ever recommended for or awarded the PH by proper authority while serving on active duty, and there are no medical treatment records on file that show he was ever treated for a combat related wound or injury as a result of enemy action.

4.  Further, the applicant’s name is not included on the Vietnam Casualty Roster, the official DA lists of battle casualties.  Absent any evidence of record to corroborate the applicant’s claim, or any evidence of record that confirms he was wounded as a result of enemy action and received medical treatment for that wounding, the regulatory burden of proof necessary to support award of the PH has not been satisfied.

5.  The applicant’s claim of entitlement to the CIB was also carefully considered.  However, in order to support award of the CIB, there must be evidence that the member held an infantry MOS, served in a qualifying infantry unit of brigade, regimental or smaller size, and that he was present and participated with that unit at a time when it was engaged in active ground combat with enemy forces.

6.  The evidence of record in this case shows the applicant held and served in the primary MOS of 76Y.  There is no evidence of record showing he ever held or served in an infantry MOS; was assigned to or served with a qualifying infantry unit during his RVN tour; or was present and participated with a qualifying infantry unit while it was engaged in active ground combat during his RVN tour.  Accordingly, there is no evidence to confirm he met the eligibility requirements necessary to support award of the CIB while serving on active duty.  Therefore, there is no basis to support granting this portion of the requested relief.

7.  The applicant and all others concerned should know that this action related to award of the PH and CIB in no way diminishes the sacrifices made by him 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)                                         AR20110016100





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ABCMR Record of Proceedings (cont)                                         AR20110016100



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