IN THE CASE OF:	   

		BOARD DATE:	  11 June 2013

		DOCKET NUMBER:  AR20120020637 


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 when he was younger he never thought much about these awards; however, now that he is older he realizes he is deserving.  He believes these awards were omitted from his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

3.  The applicant provides:

* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 1 November 2012
* Citation for award of the Army Commendation Medal
* Copy of an envelope
* Copy of a letter, dated 2 October 1970
* List of names and points of contact information
* Report, dated 24 April 1971
* VA rating decision, dated 3 February 2007
* 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.  The applicant was inducted into the Army of the United States on 12 February 1970 and held military occupational specialty (MOS) 13B (Field Artillery Crewman).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  His DA Form 20 (Enlisted Qualification Record) shows he was assigned to Vietnam from 29 July 1970 to 15 September 1971 and served with:

* Headquarters and Headquarters Battery, 6th Battalion, 29th Field Artillery Regiment, 4th Infantry Division from 11 August 1970 to 
		23 November 1970
* 23rd Administrative Replacement Detachment from 24 November 1970 to 6 December 1970
* Battery B, 1st Battalion, 82nd Field Artillery Regiment from 
7 December 1970 to 25 August 1971
* Battery C, 1st Battalion, 82nd Field Artillery Regiment from 26 August 1971 to 11 September 1971

4.  There is no evidence of record that shows he was injured or wounded as a result of hostile action or that he was awarded the Purple Heart.  There is nothing in six typical sources that shows he was wounded/injured as a result of hostile action:

	a.  Item 40 (Wounds) of his DA Form 20 does not show a combat wound or injury.  

	b.  Item 41 (Awards and Decorations) of his DA Form 20 does not list the Purple Heart among his awards.

	c.  A review of the Awards and Decorations Computer Assisted Retrieval System maintained by the U.S. Army Human Resources Command (HRC), 
which is an index of general or special orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders for the Purple Heart pertaining to the applicant.

	d.  His name is not shown on the Vietnam casualty listing.  This is a microfiche listing of Vietnam Era casualties that is used to verify entitlement to the Purple Heart. 

	e.  His record does not contain an official Army message or a Western Union telegram notifying his next of kin of an injury or wound.  This was the proper notification of injuries at the time. 

	f.  His medical records are not available for review with this case.

5.  There is no evidence of record in the three typical sources showing he was awarded the Combat Infantryman Badge.

	a.  His record does not contain official orders awarding him the Combat Infantryman Badge.

	b.  Item 41 (Awards and Decorations) of his DA Form 20 does not list the Combat Infantryman Badge among his awards.

6.  He was honorably released from active duty on 16 September 1971.  His 
DD Form 214 does not show award of the Purple Heart or the Combat Infantryman Badge.

7.  He provided a VA Form 21-4138, dated 1 November 2012, wherein he stated:

* on or about 30 September 1970, in Cambodia, a round fired by the mortar platoon he was with dropped close to his position and he received shrapnel wounds to his face
* on 24 April 1971, while in Vietnam, a mortar round hit the ground near him and sprayed tear gas and shrapnel all over his back
* He was told he was supposed to receive the Combat Infantryman Badge because he was with an infantry unit acting as the radio man for the forward observer

8.  He provided a letter, dated 2 October 1970, wherein he stated "We were pulling out of our last fire base and the mortar platoon with us [was] firing up their extra rounds.  They dropped one too close to our position and I caught a piece of shrapnel in the face."

9.  He provided a list of names and points of contact for individuals he indicated were with him when he was wounded on 24 April 1971.

10.  He provided a report, dated 24 April 1971, which listed the names of several Soldiers who were wounded in action.  His name was not included among those listed.

11.  He provided a VA rating decision, dated 3 February 2007, which shows he received a service-connected, Vietnam era incurred, disability rating for a shrapnel wound to his right calf, a shrapnel wound to his right upper lip, and a shrapnel wound to his left upper back.  

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

	a.  the Purple Heart is awarded for a wound sustained while in action against and 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the Purple Heart:

	a.  The criteria for the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.

	b.  His record is void of any medical records to show he was wounded as a result of hostile action or that the injuries he described required treatment by medical personnel on 30 September 1970 or 24 April 1971.

	c.  He stated in his letter, dated 2 October 1970, that he was injured by a mortar round when the mortar platoon he was with was "firing up their extra rounds [and] dropped one too close" to his position.  This injury was clearly not the result of hostile enemy fire, or the result of being hit by friendly fire intended to wound the enemy.  

	d.  His records are void of any evidence and he has not provided any evidence showing he was ever awarded or recommended for the Purple Heart.

	e.  Based on the foregoing, there is insufficient evidence to award the Purple Heart.

2.  With respect to award of the Combat Infantryman Badge:

	a.  His records are void of any evidence and he has not provided any evidence showing he was ever recommended for award of the Combat Infantryman Badge.

	b.  In order to support award of the Combat Infantryman Badge, there must be evidence the member held an infantry MOS and served in an infantry MOS.  His records are void of any evidence and he failed to provide evidence that fulfills this requirement.  He was an artilleryman, assigned to an artillery unit.

	c.  Based on the foregoing, there is insufficient evidence to award the Combat Infantryman Badge.

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 our Nation.  The applicant and all Americans should be justifiably proud of his service in Vietnam.



      _______ _   _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)                                         AR20120020637





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ABCMR Record of Proceedings (cont)                                         AR20120020637



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