PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           30 August 2001                   
	DOCKET NUMBER:   AR2001059539

	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. Edmund P. Mercanti		Analyst	

e following members, a quorum, were present:

	Mr. Raymond V. O'Connor 		Chairperson	
	Mr. Christopher J. Posser       		Member	
	Ms. Linda D. Simmons		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.
2.  The applicant requests that his DD Form 214, Armed Forces of the United States, Report of Transfer or Discharge, be corrected to add the time he spent on the Temporary Disability Retired List (TDRL).  In addition, he requests that he be awarded the Combat Infantryman Badge (CIB) and the Purple Heart (PH).

3.  The applicant states he was still under the care of Army doctors while he was on the TDRL.

4.  The applicant’s military records show that he entered on active duty in an enlisted status on 10 June 1970, was awarded the military occupational specialty of infantryman, was promoted to pay grade E-3, was stationed with an infantry company in Vietnam on 21 November 1970, and reenlisted on 1 March 1971.

5.  On 28 September 1971 the applicant sustained multiple fragment wounds of his right lower leg with open fractures of his right tibia and fibula and massive skin loss of the lower leg when he stepped on a booby trap.

6.  The applicant was determined medically disqualified for retention.  At that time he was counseled on his right to request continuance on active duty and declined that opportunity in writing.  He was then referred to a physical evaluation board which determined that he was physically unfit and recommended that he be placed on the TDRL, rated 50 percent disabled.  The applicant concurred with that finding and recommendation.

7.  Accordingly, on 30 June 1972 the applicant was honorably released from active duty and placed on the TDRL the following day.  His DD Form 214 shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal and the Vietnam Campaign Medal with 1960 device.

8.  On 1 April 1974 the applicant was discharged from the TDRL and placed on the retired list due to permanent physical disability, rated 40 percent disabled.

9.  On 20 May 1993 the Army Reserve Personnel Command awarded the applicant a CIB for his combat service in Vietnam.

10.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for wounds sustained 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 a medical officer, and the medical treatment must have been made a matter of official record.

11.  Army Regulation 600-8-22 also provides that 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.  

12.  Army Regulation 635-40, chapter 7, provides guidance on the TDRL.  This chapter defines the TDRL as a retired list for soldiers who are temporarily retired due to a physical disability which has not stabilized to the point which would allow for a permanent rating.  Soldiers may not be kept on the TDRL in excess of 5 years.  When removed from the TDRL, soldiers are returned to duty or discharged without monetary disability benefits if the physically unfitting condition resolved itself; soldiers are discharged with severance pay if they continue to be physically unfit and the condition(s) are rated less than 30 percent disabling; or soldiers are placed on the retired list due to permanent physical disability if they continue to be physically unfit and the condition(s) are rated at 30 percent disabling or greater.

CONCLUSIONS:

1.  The applicant was given the opportunity to request continuance on active duty and declined that option.  Therefore, he was properly discharged from active duty and placed on the TDRL in accordance with the applicable rules, regulations, and laws in effect at the time, as well as in keeping with the personal desires of the applicant.

2.  The applicant was issued a DD Form 214 upon his release from active duty, and that DD Form 214 properly reflects the amount of active service the applicant performed.  The time the applicant subsequently spent assigned to the TDRL was not active duty; it was a retired status.  As such, there is no reason to correct the amount of active service performed by the applicant.

3.  However, the applicant was wounded by an enemy booby trap.  As such, he should have been awarded the PH.

4.  The Board concurs with the Commander, Army Reserve Personnel Command that the applicant should be awarded the CIB since he held an infantry MOS while serving in an infantry unit while that unit was engaged in active ground combat.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

	a.  awarding to the individual concerned the PH for wounds he sustained on 28 September 1971; and
	b.  issuing to him a DD Form 215 adding the PH and the CIB.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

____lds__  ____rvo_  ____cjp__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		________Raymond V. O'Connor___
		        CHAIRPERSON

INDEX

CASE ID	AR2001059539	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010830	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	107.00	
2.	108.05	
3.		
4.		
5.		
6.