RECORD OF PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:            November 25, 2003                  
	DOCKET NUMBER:   AR2003089348

	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. Jessie B. Strickland		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Ms. Yolanda Maldonado		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that he be awarded the Combat Infantryman Badge (CIB) and the Purple Heart.

2.  The applicant states that while serving in Vietnam as an infantryman, his bunker suffered a direct mortar hit and due to the concussion blast, he bled from both ears.  He contends that he is entitled to awards of the Purple Heart and the CIB.

3.  The applicant provides a copy of an order awarding him the Army Commendation Medal (ARCOM) for meritorious service, a copy of his report of separation (DD Form 214), and a copy of his separation orders.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on 1 February 1971.  The application submitted in this case is dated 3 February 2003.  

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 limitation 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 records, though somewhat incomplete, show that he enlisted in Sacramento, California, on 2 February 1968, for a period of 3 years. 

4.  He was transferred to Vietnam on 2 August 1969 and was assigned to II Corps Advisory Team 38, for duty as a light weapons infantryman.  He was advanced to the pay grade of E-4 and served there until 28 July 1970, when he was transferred to Fort Hood, Texas.

5.  On 1 February 1971, he was honorably released from active duty (REFRAD) in the pay grade of E-2, due to the expiration of his term of service (ETS).  He had served 3 years of total active service and was awarded the National Defense Service Medal, the Vietnam Service Medal with two bronze service stars and the Republic of Vietnam Campaign Medal.

6.  The orders provided by the applicant show that he was awarded the ARCOM for meritorious service during the period of August 1969 to July 1970 by Military Assistance Command – Vietnam (MAC-V) orders 3764, dated 13 July 1970.  This award was never entered on his DD Form 214.

7.  In 1987, the Army Reserve Personnel Center authorized the issuance of the Republic of Vietnam Gallantry Cross with Palm (RVNGC w/Palm) Unit Citation; however, it was never added to his DD Form 214.

8.  A review of the available records as well as the Vietnam Casualty Listing failed to show any evidence that the applicant was wounded, treated for any such wounds or injuries, or that he was reported as a casualty.  

9.  Army Regulation 672-5-1, in effect at the time, established the criteria for award of the CIB.  It states, in pertinent part, that to be eligible for the CIB, an individual must be an infantryman with an infantry military occupational specialty (MOS) and must perform duty as an infantryman, as a member of an infantry unit of brigade or smaller size, during any period in which that unit was engaged in ground combat.  Battle participation credit alone is not sufficient.

10.  That regulation also provides, in pertinent part, that the Purple Heart is awarded for a wound/injury sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was a result of hostile action, that the wound must have required treatment by a medical officer, and that the medical treatment was made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has failed to show through the evidence submitted with his application or the evidence of record that he performed the duties of an infantryman assigned to an infantry unit that was engaged in ground combat while in Vietnam.  Accordingly, there is no basis to award him the CIB.

2.  The applicant has also failed to show that he sustained wounds or injuries as a result of hostile action in Vietnam or that he was treated for any such wounds or injuries.  Accordingly, there is no basis to award him the Purple Heart at this time.

3.  Records show the applicant should have discovered the error or injustice now under consideration on 1 February 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 1 February 1974.  However, the applicant did not 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 file in this case.
4.  Evidence shows that the applicant’s records contain administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant's records will be accomplished by the Army Review Boards Agency (ARBA) Support Division, St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

YM__  __LEM___  __RO____     DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not 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.  

2.  The Board also determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the ARBA Support Division-St. Louis administratively correct the records of the individual concerned to show awards of the ARCOM and the RVNGC w/Palm Unit Citation. 

		Raymond V. O’Connor
		    CHAIRPERSON

INDEX

CASE ID	AR2003089348	
SUFFIX		
RECON		
DATE BOARDED	2003/11/25	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1971/02/01	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.107.0020	66/ARCOM	
2.107.0111	157/CIB	
3.		
4.		
5.		
6.