IN THE CASE OF:	  

		BOARD DATE:	  20 November 2012

		DOCKET NUMBER:  AR20120009621 


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 and the Combat Infantryman Badge.  

2.  The applicant states:

   a.  He contributes his hearing loss and tinnitus to his time in the military.  While serving in Vietnam he was assigned to the 173th Airborne Brigade.  Their main source of transportation was using Chinook helicopters as well as UH-10 copters and C123 and C130 aircrafts.  He was assigned to several combat units as a forward observer.  He spent from one to three weeks in the field with these units depending on when they found a permanent forward observer to replace him.

   b.  While serving in Vietnam he had to carry a handgun and M-16 assault rifle. While serving in combat he also had to carry and fire an M-60 machine gun,     M-79 grenade launcher, and plastic C-4 chargers.  He was always near artillery explosions on the field on in base camp.  When he was stationed near the Ho Chi Minh Trail, Vietnamese units fired at his position using 75mm artillery shells and 12mm rocket shells.  His positions were hit on a regular basis about 40-60 times per night.

   c.  On his second tour he was assigned as Fire Direction Control in charge of Battery A, 3rd Battalion, 319th Artillery.  This battery had 6 howitzers 102mm caliber and was in support of all combat units operating within their firing range.  He was on duty 24 hours, 7 days a week.  His sleeping and working bunkers were both near the firing battery about no more than 20 feet away.  This way his response time was always approximately in 3-5 minutes.  He believes the sounds of war were and continue to this date to be the main cause of his hearing loss and tinnitus.

   d.  During his second tour in Vietnam on 2 November 1969, they got hit by a sapper in the compound.  They were able to repel the sapper and regain security within the compound.  This attack happened at 2 or 3 in the morning.  He was told not to go on the sweep of the outside perimeter since he only had a couple of days before leaving Vietnam.  He went anyway and they were fired upon from about 10 meters.  He tried to bring a follow Soldier to safety, but the Soldier had been hit.  He will forever carry that moment in his heart and a feeling of guilt, why this Soldier and not himself.

3.  The applicant provides a completed VA Form 21-4138 (Department of Veterans Affairs – Statement in Support of Claim).

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 enlisted in the Regular Army, in pay grade E-1, on 17 October 1967, for 3 years.  He completed training and was awarded military occupational specialty 13E (Field Artillery Operator and Intelligence Assistant).  

3.  He served in Vietnam from 2 May 1968 through 12 December 1969.  He was assigned to:

* Headquarters and Service Battery, 3rd Battalion, 319th Artillery from 8 May 1968 to 5 July 1969
* Battery A, 3rd Battalion, 319th Artillery from 6 July to 8 December 1969

4.  During his tour in Vietnam he was assigned duties as a chart operator and fire direction controller.

5.  He was honorably released from active duty, in pay grade E-5, on 16 October 1970 and he was transferred to the U.S. Army Reserve Control Group (Reinforcement).  He was credited with completing 3 years of net active service and no time lost.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) lists the:

* National Defense Service Medal
* Vietnam Service Medal
* Parachutist Badge
* Bronze Star Medal
* Vietnam Campaign Medal with Device 1960
* Army Good Conduct Medal

6.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not reflect he was wounded or injured as a result of hostile action.  Item 41 (Awards and Decorations) of this form does not list the Purple Heart or Combat Infantryman Badge.

7.  There is no evidence of record and the applicant did not provide any evidence that he was awarded the Purple Heart and Combat Infantryman Badge while serving in Vietnam.  There is also no evidence that he held an infantry MOS and participated in active ground combat with an infantry unit during his period of service in Vietnam.

8.  A review of the Awards and Decorations Computer-Assisted Retrieval System, 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 and Combat Infantryman Badge pertaining to the applicant.

9.  The Vietnam casualty listing does not show his name.

10.  Army Regulation 600-8-22 (Military Awards) states:

	a.  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.

	b.  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.  The Awards Branch of the U.S. Army Human Resources Command has advised, in similar cases, that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11F, 11G, or 11H.

11.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) governed award of the CIB to Army forces operating in South Vietnam.  This regulation specifically stated that criteria for award of the CIB identified the man who trained, lived, and fought as an infantryman and the CIB is the unique award established to recognize the infantryman and only the infantryman for his service. Further, "the CIB is not an award for being shot at or for undergoing the hazards of day-to-day combat."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for award of the Purple Heart was carefully considered.  However, there is no evidence of record and he provided none showing he was injured or wounded by hostile forces during his service in Vietnam and received medical treatment, or that such treatment was made a matter of official record.

2.  Absent corroborating evidence confirming his contention, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  He therefore is not entitled to award of the Purple Heart or to have this award added to his DD Form 214 at this time.

3.  To be entitled to award of the Combat Infantryman Badge, the evidence must show that an applicant held and served in an infantry MOS while assigned or attached to an infantry unit of brigade, regimental or smaller size, and must have served in active ground combat while assigned or attached to this infantry unit.

4.  The evidence of record shows he completed training, was awarded, and served in MOS 13E throughout his military service and during his service in Vietnam.  There is no evidence he was awarded and/or served in an infantry MOS during his period in Vietnam or military service.  While serving in Vietnam, he was primarily assigned to an artillery brigade and performed duties of a Fire Direction Controller.

5.  All Soldiers were provided basic combat skills training after they entered the Army.  This was provided to ensure that all Soldiers had the survival skills to perform basic infantry missions when the need arose.  Therefore, the exigencies of combat required non-infantry Soldiers to temporarily perform the basic infantry duties that all Soldiers were trained to do; however, it is not a basis for the award of the Combat Infantryman Badge.  Based on the available evidence, the applicant is not entitled to award of the Combat Infantryman Badge and to have it added to his DD Form 214.

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)                                         AR20120009621





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ABCMR Record of Proceedings (cont)                                         AR20120009621



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