IN THE CASE OF:  	  

		BOARD DATE:  2 October 2014	  

		DOCKET NUMBER:  AR20140003149 


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 the following:

* award of the Combat Infantryman Badge, Purple Heart, and Bronze Star Medal
* a personal appearance before the Board

2.  The applicant states:

   a.  He returned home from Vietnam in 1971, there were no homecoming parades or welcoming parties.  They were encouraged to travel in civilian clothes to avoid possible conflicts with those opposed to the war.  No one except the immediate family and friends cared to hear about the Southeast Asia experience and truth be told, he was never comfortable sharing anything.  His service record was incomplete and he had already been separated from the Army.  He did not know there was a way to have it corrected.

   b.  Forty-three years later, he rarely shared his Vietnam experiences and then only with family and a handful of close friends.  His memories are very personal and some still painful.  His military occupational specialty (MOS) was 11C (infantry indirect fire crewman).  While at Fort Polk, LA, he trained in infantry and also received a short course specific training for the 81 millimeter (mm) mortar.

   c.  In February 1970, he arrived at his assigned duty station, Company A, 2nd Battalion, 60th Infantry, 9th Infantry Division, in Tru, Vietnam.  He was also given an opportunity to volunteer for the Reconnaissance Unit, but declined.  The entire time he served with the 9th Division he was an 11C.  About 2 months into his tour he was given the duty of carrying the M-60 machine gun when the previous Soldier had finished his tour of duty.  He continued carrying the M-60 through the remaining 8 months he served with the 9th Division.  Even though they were in a combat situation virtually every day for those 8 months, his service record does not contain a Combat Infantryman Badge.  He earned that designation day after day, month after month many times over.

   d.  During an exceptionally brutal attack by the enemy in the early morning hours of 26 May 1970 (Cambodia), they suffered heavy casualties and he lost a good friend.  During the attack, his M-60 machine gun was the only one on their company perimeter to fire.  His best friend took a bullet right through his helmet (photograph #3) on his first attempt to return fire and was pinned down during most of the enemy assault.

   e.  His M-60 machine gun position faced directly into a Rubber Tree plantation.  It was a moonless, pitch black night and even with the assistance of a starlight scope he could see nothing under the full cover of the rubber trees.  During this assault, Jxx Gxxxxx (photograph #11) and he were shoulder to shoulder and Jxx assisted him with the M-60 in the darkness.  He felt a burn in his shoulder and at the same time Jxx said, "I'm hit in the back."  The attack intensified again and he simply never said anything about his wound (picture with bandage on shoulder).  That morning their medics were working hard on the wounded and getting them evacuated out by chopper.  He got a bandage for his own shoulder and thanked God for seeing him through the night.  A Purple Heart was the last thing on his mind after seeing so many wounded.

   f.  During the days following the attack everyone was talking about the Bronze Star Medal that he would receive for his continued assault with the M-60 while under direct fire from the enemy.  Due to enemy mortar fire that silenced their 81mm Mortar Squad, continuous ground assault by the enemy and darkness, his M-60 was the only one on their company perimeter to return fire during the battle. As the days went by, they continued to incur casualties and just trying to survive was the order of the day.  A Bronze Star Medal was yesterday's news and paled in comparison to their daily concerns.  Their company was in total disarray due to the losses sustained on 26 May 1970.

   g.  On 14 June 1970, they were ambushed during the day and their first platoon noncommissioned officer (NCO) was killed in action.  A few days later their company commander left on emergency leave and never returned.  Now all the officers and NCOs who could have submitted his name for the Bronze Star Medal are gone.

   h.  His 5 grandsons are the reasons for this request and they should know his full contributions for their country defending the freedom they enjoy each day.  He believes he earned the designation of the Combat Infantryman Badge, Purple Heart, and Bronze Star Medal.  He is submitting a copy of a letter he wrote to his parents on 21 June 1970.  The only thing not in the letter is his injury.  He delayed writing his patterns for a month after this incident and even then he was not going to tell his mom he had been injured.  He was not married while in the service.

   i.  After many years of searching for Jxx Gxxxxx he recently found his sister, only to discover Jxx died of cancer in 2012, a result of Agent Orange.  Ex Rxxxx (photograph #10) died of prostate cancer in 1991, Agent Orange.  He had prostate cancer in 1997, Agent Orange.  He was lucky it was discovered very early.

3.  The applicant provides copies of the following:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Honorable Discharge Certificate
* letter to his parents
* fifteen pictures of himself, members of his unit, and his family
* letter from his current wife

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant's military records show he was inducted into the Army of the United States on 9 September 1969.  He completed basic combat and advanced individual training and he was awarded MOS 11C. 
3.  He served in Vietnam from 12 February 1970 through 24 January 1971, during three campaigns.  He was assigned to Company B, 2nd Battalion, 60th Infantry, 9th Infantry Division.

4.  His records contain a Standard Form 89 (Report of Medical Examination) which shows he underwent an examination for the purpose of separation on 8 September 1971.  On the form, he indicated he had contacted malaria in September 1970 and he was in good health.  He was found qualified for separation.

5.  He was honorably released from active duty on 8 September 1971.  He was credited with completing 2 years of net active service.  His DD Form 214 lists the:

* Vietnam Service Medal with two bronze service stars
* National Defense Service Medal
* Republic of Vietnam Campaign Medal
* Air Medal
* Expert Marksmanship Qualification Badges with Rifle, Pistol, and 81mm Mortar Bars

6.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Records) does not show he was wounded in action while serving in Vietnam.  Item 41 (Awards and Decorations) of this form lists all the awards shown on his DD Form 214.

7.  There are no available orders authorizing or awarding him a Combat Infantryman Badge, Purple Heart, and Bronze Star Medal during his period of service in Vietnam.

8.  He provides fifteen pictures of himself, members of his unit, and his family; copies of a letter to his parents, dated 21 June 1970; and a letter from his current wife.  He stated the documentation he was submitting showed he served in Vietnam and was wounded.

9.  His name is not shown on the Vietnam casualty roster.

10.  A 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 U.S. Army Human Resources Command, failed to reveal any award orders for the Combat Infantryman Badge, Purple Heart, and Bronze Star Medal pertaining to the applicant. 


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

   a.  Combat Infantryman Badge is awarded to an infantryman Soldier satisfactorily performing infantry duties while assigned to an infantry unit during such time as the unit is engaged in active ground combat, and actively participate in such ground combat.

   b.  Purple Heart is awarded for a wound sustained as a result of enemy 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.

   c.  Bronze Star Medal is awarded to any person who, while serving in any capacity in or with the Army of the United States after 6 December 1941, distinguished himself or herself by heroic or meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy; or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party. 

12.  Title 10, U.S. Code, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

13.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to the Secretary of the Army at the following agency:  U.S. Army Human Resources Command, ATTN:  SGS, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  The applicant's unit must be clearly identified, along with the period of assignment and the award being recommended.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Corroborating evidence is best provided by commanders, leaders and fellow Soldiers who had personal knowledge of the circumstances and events relative to the request.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

14.  Army Regulation 15-185 governs operations of the ABCMR.  It states applicants do not have a right to a hearing before the ABCMR.  The Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant counsel, and witnessed may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  With regard to award of the Combat Infantryman Badge:

   a.  The applicant completed training and was awarded MOS 11C.  He served in Vietnam from 12 February 1970 through 24 January 1971 with the 60th Infantry, 9th Infantry Division.  There is no evidence of record and he did not provide sufficient evidence showing he personally participated in active ground combat while assigned/attached to this infantry unit during his period of service in Vietnam.  

   b.  To be entitled to award of the Combat Infantryman Badge, the evidence must show he held and served in an infantry MOS while assigned/attached to an infantry unit of brigade, regiment, or smaller size and he must have served in active ground combat while assigned/attached to this infantry unit during his period of service in Vietnam.

2.  With regard to award of the Purple Heart:

   a.  There is no evidence and he provided insufficient evidence to show he sustained a wound/injury as a result of enemy action, received treatment, and that treatment was made a matter of official record for award of the Purple Heart. Additionally, his complete medical records, which are necessary to confirm that treatment was required, are not available for review.  Item 40 of his DA Form 20 does not show he was wounded.  His name is also not on the Vietnam casualty roster.

   b.  By regulation, to be awarded the Purple Heart it is necessary to establish that a Soldier was wounded or injured in action.  There must be evidence confirming 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 medical personnel, and a record of this treatment must have been made a matter of official record.  

3.  With regard to award of the Bronze Star Medal:

   a.  His contentions pertaining to the talk of him being awarded the Bronze Star Medal is acknowledged.  However, there are no orders or evidence found either in his service personnel record or in the ADCARS data base to support the addition of this award to his DD Form 214.

   b.  While the available evidence is insufficient for awarding him the Bronze Star Medal and its addition to his DD Form 214, this in no way affects his right to pursue his claim for the Bronze Star Medal by submitting a request through his Member of Congress under the provisions of Title 10, USC, section 1130.

4.  With regard to the personal hearing, his request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

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)                                         AR20140003149





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140003149



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1