RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         7 March 2006
      DOCKET NUMBER:  AR20050011071


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Thomas H. Reichler            |     |Member               |
|     |Mr. Scott W. Faught               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, award of the Combat Infantryman
Badge (CIB) and Purple Heart (PH).

2.  The applicant states, in effect, that he received a fragment wound
while serving in the Republic of Vietnam (RVN) that entitles him to the PH,
and that he should have been awarded the CIB based on his combat
experience.

3.  The applicant provides the following documents in support of his
application:  Physical Profile (DA Form 3349); Separation Document (DD Form
214); and Authorization for Issuance of Awards (DA Form 1577).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 22 April 1971.  The application submitted in this case is
dated 20 July 2005.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's record shows that he was inducted into the Army and
entered active duty on 23 April 1969.  He was trained in, awarded and
served in military occupational specialty (MOS) 11B (Light Weapons
Infantryman), and the highest rank he attained while serving on active duty
was sergeant (SGT).

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows that
he served in the RVN from 30 April 1970 through 14 June 1970.  Item 38
(Record of Assignments) shows that during his RVN tour, he was assigned to
Company C, 1st Battalion (Airmobile), 327th Infantry Regiment, performing
duties as an infantry squad leader.

5.  Item 38 of the applicant's DA Form 20 confirms he was medically
evacuated to Japan and was a patient at the 249th General Hospital from 15
June through 23 June 1970, at which time he was medically evacuated to
Beaumont Army Medical Center, Fort Sam Houston, Texas, where he remained a
patient until
1 September 1970.

6.  Item 40 (Wounds) of the applicant's DA Form 20 contains an entry
indicating that he was wounded in action in the RVN on 11 June 1970, by a
gunshot wound to the left heel.  Item 41 (Awards and Decorations) shows
that during his active duty tenure, he earned the National Defense Service
Medal (NDSM), Parachutist Badge, Vietnam Service Medal (VSM), Army Good
Conduct Medal (AGCM), Sharpshooter Qualification Badge with Rifle (M-16)
Bar, and Marksman Qualification Badge with Rifle (M-14) Bar.

7.  The applicant's Military Personnel Records Jacket (MPRJ) contains a
DA Form 3349, dated 3 December 1970, which shows he was issued a temporary
3 (T-3) profile based on a fragment wound to his foot.

8.  The applicant's MPRJ is void of any orders, or other documents, that
indicate he was ever recommended for, or awarded the PH or CIB by proper
authority.

9.  On 22 April 1971, the applicant was honorably separated after
completing
2 years of active military service.  The DD Form 214 he was issued shows
that during his active duty tenure, he earned the NDSM, VSM and AGCM.  The
PH and CIB were not included in the list of authorized awards contained on
the
DD Form 214, and the applicant authenticated the separation document with
his signature.

10.  A DA Form 1577, dated 29 November 1984, shows that the applicant was
issued the following awards by the Army Reserve Personnel Command
(ARPERSCOM), St. Louis, Missouri:  PH; AGCM; NDSM; VSM with 2 bronze
service stars; Parachutist Badge; Sharpshooter Qualification Badge with
Rifle Bar; and Marksman Qualification Badge with Rifle Bar.  However, there
is no explanation for why the PH was issued, and the CIB was not issued.

11.  The applicant provides a Department of Veterans Affairs (VA) Rating
Decision, dated 19 October 2005.  This document shows that the applicant
received disability ratings and/or is being treated by the VA for the
following service connected conditions:  Post Traumatic Stress Disorder;
Decreased range of motion of right upper extremity; Tinnitus; Scar, shell
fragment wound of right lateral back; Scar, fragment would of right lateral
back; and Bilateral hearing loss. The VA rating decision document does not
indicate whether military medical treatment records were reviewed during
this process, and does not explain the circumstances under which the
fragment wounds referred to were received as a direct result of, or were
caused by enemy action in the RVN.

12.  During the processing of this case, a member of the Board staff
reviewed the Department of the Army Casualty Roster.  The applicant's name
was not included on this RVN battle casualty list.  In addition, historical
records containing PH orders were reviewed and there were no orders
published awarding the applicant the PH.

13.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and
criteria concerning individual military awards.  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 as an injury to any part of the body from an outside
force or agent sustained under conditions defined by this regulation.  In
order to support awarding a member 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, the wound required treatment by a
medical officer.  This treatment must be supported by records of medical
treatment for the wound or injury received in action, and must have been
made a matter of official record.

14.  Paragraph 2-13 of the awards regulation contains guidance on the VSM.
It states, in pertinent part, that a bronze service star is authorized with
this award for each RVN campaign a member is credited with participating
in.  Table B-1 of the same regulation contains a list of RVN campaigns.  It
shows that during the applicant’s tenure of assignment, campaign credit was
awarded for the Vietnam Winter-Spring 1970 and Sanctuary Counteroffensive
campaigns.

15.  Army Regulation 600-8-22 (Military Awards) contains the Army’s awards
policy.  Paragraph 8-6 contains guidance on award of the CIB.  It states,
in pertinent part, that there are basically three requirements for award of
the CIB.  The Soldier must be an infantryman satisfactorily performing
infantry duties, must be assigned to an infantry unit during such time as
the unit is engaged in active ground combat, and must actively participate
in such ground combat.  Campaign or battle credit alone is not sufficient
for award of the CIB.

16.  Paragraph 8-6b of the awards regulation further states, in pertinent
part, that the definition or requirement to be "engaged in active ground
combat" has generated much dialogue over the years as to the original
intent of the CIB.  In 1963 and 1965 Department of the Army (DA) messages
to the senior Army commander in the Southeast Asia theater of operations
authorized award of the CIB to otherwise qualified personnel "provided they
are personally present and under fire."  United States Army Vietnam
regulations went so far as to require documentation of the type and
intensity of enemy fire encountered by the Soldier. The intended
requirement to be "personally present and under fire" has not changed.

17.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit
Register) establishes the eligibility of individual members for campaign
participation credit, assault landing credit, and unit citation badges
awarded during the Vietnam Conflict.  It confirms that during his tenure of
assignment in the RVN, the applicant’s unit (1st Battalion, 327th Infantry
Regiment) earned the RVN Civil Actions Honor Medal First Class Unit
Citation and RVN Gallantry Cross with Palm Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to the PH and CIB, and
the supporting evidence he submitted were carefully considered.  However,
there is an insufficient evidence to support this claim.

2.  By regulation, 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
direct result of, or was caused by enemy action.  Although there is an
entry in Item 40 of the applicant’s DA Form 20 that indicates he received a
gunshot wound to his left heel on 11 June 1970, his record is void of any
entries or documents that show he received this wound as a result of enemy
action.  Further, Item 41 of his DA Form 20 does include the PH in the list
of awards entered, which could have been expected had the wound been combat
related given the Item 40 entry.

3.  The evidence further shows the applicant was medically evacuated from
the RVN; however, there are no medical records available that confirm that
the wound for which he was evacuated was received as a result of enemy
action.  It is reasonable to presume that had the applicant's foot wound
support award of the PH, it would have been awarded by the hospital
commanders at either of these locations.  Further, the only military
medical evidence available is a Physical Profile form that show he received
a T-3 profile based on a fragment wound to his foot; however, this document
fails to show this fragment wound was received as a result of enemy action.


4.  Finally, the applicant’s name is not included on the Vietnam casualty
roster, the official DA list of RVN battle casualties.  Absent any evidence
(PH awards orders, eye-witness statements, medical treatment documents
confirming his foot wound was combat related etc), the regulatory burden of
proof necessary to support award of the PH has not been satisfied in this
case.

5.  The applicant's request for the CIB was also carefully considered.
However, by regulation, in order to qualify for the CIB, a member must not
only hold an infantry MOS and serve with a qualifying infantry unit, there
must also be evidence that he was personally present with the qualifying
infantry unit when it was engaged in active ground combat, and that that he
actively participated in such ground combat.  Holding an infantry MOS,
being assigned to qualifying unit and receiving campaign or battle credit
alone are not sufficient to support award of the CIB.

6.  In this case, the evidence of record shows the applicant held an
infantry MOS and was assigned to a qualifying infantry unit in the RVN.
However, there is no evidence showing that he and/or his unit actively
engaged the enemy in ground combat during his tenure of assignment.
Therefore, given his record is void of any documentary evidence showing he
was ever awarded the CIB by proper authority, the regulatory burden of
proof necessary to support award has also not been satisfied.

7.  The PH and CIB are not included in the list of awards contained on the
applicant’s DD Form 214, which he authenticated with his signature on the
date of his separation.  His signature, in effect, was his verification
that the information contained on the separation document, to include the
list of awards, was correct at the time it was prepared and issued.

8.  It view of the facts of this case, it is concluded that it is just as
likely that the applicant's foot wound was accidental, as opposed to being
received as a result of enemy action.  This would explain his not being
awarded the PH and CIB by proper authority at the time, the fact that his
name is not included on the official DA list of RVN battle casualties, and
why the awards in question are not included in the list of authorized
awards contained on his DD Form 214.  As a result, there is an insufficient
evidentiary basis to support award of either the PH or CIB in this case.

9.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement

10.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH and CIB now under consideration on 22
April 1971, the date of his separation from active duty.  Therefore, the
time for him to file a request for correction of any error or injustice
expired on 21 April 1971.  However, he failed to file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

11.  The record confirms that based on his RVN service and campaign
participation, the applicant is entitled to the RVN Campaign Medal with
1960 Device, Meritorious Unit Commendation, RVN Gallantry Cross with
 Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit
Citation
and 2 bronze service stars with his VSM.  It also shows he earned the
Sharpshooter Qualification Badge with Rifle (M-16) Bar, and Marksman
Qualification Badge with Rifle (M-14) Bar.

12.  The omission of the awards listed in the preceding paragraph from his
separation document is an administrative matter that does not require Board
action.  As a result, the Case Management Support Division (CMSD), St.
Louis, Missouri will make the necessary corrections as outlined in
paragraph 3 of the
BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JEA__  ___THR _  ___SWF   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.

3.  The Board determined that administrative error in the records of the
individual should be corrected.  Therefore, the Board requests that the
CMSD-St. Louis administratively correct his records to show he is entitled
to the Republic of Vietnam Gallantry Cross with Palm Unit Citation,
Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, 2
bronze service stars with his Vietnam Service Medal, Marksman Qualification
Badge with Rifle (M-14) Bar, and Sharpshooter Qualification Badge with
Rifle (M-16) Bar; and by providing him a corrected separation document that
includes these awards.




                            ____James E. Anderholm____
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050011071                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/03/07                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1971/04/22                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY with Adm Note                      |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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