IN THE CASE OF: BOARD DATE: 5 October 2010 DOCKET NUMBER: AR20100011655 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, on behalf of her deceased spouse (a former service member (FSM)), requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was retired due to physical disability. She also requests, in effect, correction of his DD Form 214 to show award of the Combat Infantryman Badge (CIB), Bronze Star Medal with First Oak Leaf Cluster, Air Medal, Purple Heart, and any other individual or unit awards and decorations he may be entitled to. 2. The applicant states, in effect, the FSM was wounded twice while serving in the Republic of Vietnam; once by stepping on a punji stick and the other by sustaining a wound to his head. She also states that over the years they have attempted to locate the doctor who treated his wounds in the Province of Kontum during 1965 - 1966. She further states the FSM also returned from Vietnam with epididymitis and erectile dysfunction. She attests an urologist treated him for these conditions in Highland, IL and he was also treated numerous times at Great Lakes Naval Base and at the Fort Sheridan, IL Clinic. She contends these conditions and his hypertension should have been documented more extensively in his records. She also notes a Department of Veterans Affairs (DVA) examiner read his blood pressure as normal, but disregarded the fact he was taking medication to maintain his blood pressure within normal limits. 3. As a result, she contends the review of her husband's medical records was unjust, he should have been awarded disability upon retirement, and as his spouse, she should continue to receive the disability pay that was finally awarded him in 2009. She attests that prior to his death, the FSM was advised over the telephone (on or about 9 September 2009) that a decision on two of three appeals were made and that he would receive an answer prior to the end of September 2009. She concludes that his record should be corrected as a matter of family pride and of justice being served. 4. She provides copies of: * a self-authored statement * a statement written by the FSM * the FSM's DD Form 214 * the FSM's Certificate of Death * four non-sequential pages extracted from the DVA's findings and determinations regarding the FSM's claim for service-connected disability * her passport, operator license, and military identification card as proof of her relationship to the FSM CONSIDERATION OF EVIDENCE: 1. The applicant requested that the Bronze Star Medal with First Oak Leaf Cluster and the Air Medal be added to the FSM's DD Form 214. The FSM's DD Form 214 for the period ending 31 July 1971 currently shows the Bronze Star Medal with First Oak Leaf Cluster and the Air Medal. Therefore, this portion of the applicant's request will not be discussed further in these Proceedings. 2. The FSM's record shows he served as an enlisted member of the U.S. Navy from 8 January 1951 through 7 January 1955. He also served as an enlisted member of the Regular Army from 11 July 1955 through 17 January 1957. 3. The FSM's DD Form 214 for the period ending 17 January 1957 shows the following: * item 11c (Reason and Authority [for discharge] the entry "To accept commission" * item 26 (Decorations, Medals, Badges, Commendations, Citations or Campaign Ribbons Awarded or Authorized) the entry "None" * item 27 (Wounds Received as a Result of Action with Enemy Forces) the entry "None" 4. On 18 January 1957, upon graduation from the Army Officer Candidate School, the FSM was commissioned as a second lieutenant in the U.S. Army Reserve (USAR) and immediately ordered to active duty. He continued to serve in various assignments and positions until he was voluntarily retired on 31 July 1971 for length of service in the rank/grade of major (MAJ)/O-4. His DD Form 214 for this period of service shows he completed 20 years and 20 days of total active service. At the time of his retirement, his specialty was 9300 (Military Intelligence (MI) Officer). 5. Item 17 (Foreign Service) of the FSM's DA Form 66 (Officer Qualification Record) and Item 30 (Remarks) of his DD Form 214 for the period ending 31 July 1971 show he served in the Republic of Vietnam from 23 June 1965 through 21 July 1966 and from 14 June 1969 through 12 June 1970. 6. Item 18 (Record of Assignments) of the FSM's DA Form 66 shows that during his tours of duty in the Republic of Vietnam, he served in: * specialty 9301 as an Intelligence Advisor assigned to the 23d Infantry Advisor Detachment (Counterintelligence), U.S. Military Assistance Command Vietnam (USMAC-V) from 25 June 1965 through 6 February 1966 * specialty 9301 as an Intelligence Staff Officer, Assistant G-2 Advisor, assigned to Tactical Imagery Detachment (Composite), 519th MI Battalion from 7 February 1966 through 26 July 1966 * specialty 9307 as an Intelligence Officer assigned to U.S. Army Support Command (USASUPCOM) - Cam Ranh Bay from 18 June 1969 through 11 June 1970 7. Item 21 (Awards and Decorations) of the FSM's DA Form 66 does not show award of either the Purple Heart or the Combat Infantryman Badge. 8. Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the FSM's DD Form 214 for the period ending 31 July 1971 shows he was awarded or authorized the: * Bronze Star Medal with First Oak Leaf Cluster * Meritorious Service Medal * Vietnam Service Medal * Vietnam Campaign Medal [correctly known as the Republic of Vietnam Campaign Medal with Device (1960)] * Army Commendation Medal * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Armed Forces Honor Medal 1st Class * Armed Forces Reserve Medal * Air Medal * National Defense Service Medal with First Oak Leaf Cluster * 4 Overseas Service Bars * Senior Parachutist Badge 9. The FSM's record is void of any evidence and the applicant has not provided any evidence of any specific injury or medical condition that would have rendered him unfit for continued service. Additionally, there is no indication in the FSM's records that he underwent a medical evaluation with subsequent referral to a medical evaluation board (MEB) or a physical evaluation board (PEB). 10. 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 orders for any awards or decorations that are not already annotated on the FSM's DD Form 214. 11. The FSM's record is void of any evidence and the applicant has not provided any evidence showing he: a. sustained an injury as a result of hostile action or that he received treatment for injuries sustained as a result of hostile action; b. was ever awarded the Purple Heart; c. ever performed the duties of an infantryman in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size; d. was ever awarded or recommended for award of the CIB; or e. was diagnosed with any injury or medical condition that would have rendered him unfit for continued service during his period of military service. 12. The applicant provides a statement written by the FSM, wherein he essentially expounds on his ailments and their impact on his quality of life at the time. 13. The applicant provides four non-sequential pages extracted from the DVA's findings and determinations regarding the FSM's claim for service-connected disability. In pertinent part, these documents show the DVA determined the following conditions were related to his military service, so service-connection was granted, effective 5 May 2008, resulting in the award of a combined disability rating of 60 percent (%): * Degenerative joint disease with stenosis, lumbosacral spine - 20% * Right knee status post arthroplasty with ligament laxity - 20% * Chronic bilateral epididymitis with erectile dysfunction - 20% * Degenerative joint disease of the cervical spine - 0% * Degenerative joint disease of the right knee - 10% * Normal pressure hydrocephalus with a shunt claimed as brain damage - 10% * Pes planus bilaterally with degenerative joint disease - 0% * Hypertension - 0% 14. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a direct 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. 15. U.S. Army Vietnam Regulation 672-1 (Awards and Decorations) governed award of the CIB to Army forces operating in South Vietnam. This regulation stated that criteria for award of the CIB identified the man who trained, lived, and fought as an infantryman and that the CIB was the unique award established to recognize the infantryman and only the infantryman for his service. Further, “the CIB is not an award for being shot at or for undergoing the hazards of day to day combat.” This regulation also stated the CIB was authorized for award to infantry officers, enlisted personnel, and to warrant officers who had an infantry specialty/MOS and required that they must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size. 16. Army Regulation 600-8-22 states there are basically three requirements for award of the CIB. 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. 17. Army Regulation 600-8-22, paragraph 2-13, contains the regulatory guidance on the Vietnam Service Medal. It states, in pertinent part, that a bronze service star is authorized with this award for each Vietnam campaign in which a member is credited with participation. A silver service star is authorized in lieu of five bronze service stars. Appendix B shows that during his service in Vietnam, the applicant participated in the following six campaigns: * Vietnam Defense Campaign (8 March - 24 December 1965) * Vietnam Counteroffensive (25 December 1965 - 30 June 1966) * Vietnam Counteroffensive Phase (1 July 1966 - 31 May 1967) * Vietnam Summer - Fall 1969 (9 June - 31 October 1969) * Vietnam Winter - Spring 1970 (1 November 1969 - 30 April 1970) * Sanctuary Counteroffensive (1 May - 30 June 1970) 18. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam. This pamphlet shows the unit to which the FSM was assigned (USAC-V) was cited for award of the Meritorious Unit Commendation for the period 8 March 1965 – 31 August 1967 by Department of the Army General Order (DAGO) Number 10, dated 1968. 19. Department of the Army Pamphlet 672-3 also shows the unit to which the FSM was assigned (USASUPCOM - Cam Ranh Bay) was cited for award of the Meritorious Unit Commendation for the period 31 January 1970 - 31 December 1970 by DAGO Number 43, dated 1972. 20. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability. It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. 21. Army Regulation 635-40, in pertinent part, provides that Soldiers enter the PDES under the presumption they are physically fit. This is known as the Presumption of Fitness Rule which states a Soldier is presumed fit because of continued performance of military duty up to the point of separation for reasons other than physical disability. The philosophy behind the rule is that military disability compensation is for career interruption, compensation for service-incurred conditions. Application of the Presumption of Fitness Rule does not mandate a finding of unfit. The presumption is overcome if the preponderance of evidence establishes the Soldier, because of disability, was physically unable to perform adequately the duties of his/her office, grade, rank or rating. This circumstance is aimed at long-term conditions. It may also be overcome if acute, grave illness or injury, or other deterioration of the Soldier's physical condition occurred immediately prior to, or coincident with, processing for separation or retirement for reasons other than physical disability which rendered the Soldier unfit for further duty. Future duty is a factor in this circumstance. DISCUSSION AND CONCLUSIONS: 1. The applicant's contentions that the FSM's record should be corrected to show he was retired due to physical disability and to show award of the Combat Infantryman Badge, Bronze Star Medal with First Oak Leaf Cluster, Air Medal, Purple Heart, and any other individual or unit awards and decorations to which he is entitled were carefully considered. 2. The FSM's record is void of any evidence and the applicant has not provided any evidence showing he was diagnosed with any injury or medical condition that would have rendered him unfit for continued service during his period of military service. Furthermore, the applicant has failed to overcome the presumption of fitness as pertains to the FSM at the time of his retirement. In the absence of any medical evidence to the contrary, administrative regularity is presumed in the FSM's voluntary retirement process. Therefore, it would be inappropriate to change the FSM's record to show he was retired due to physical disability. 3. A review of ADCARS failed to reveal orders for any awards or decorations that are not annotated on the FSM's DD Form 214. 4. The FSM's record is void of any evidence and the applicant has not provided any evidence which shows he sustained an injury as a result of hostile action or that he received treatment for injuries sustained as a result of hostile action. Accordingly, there is insufficient evidence to award the FSM the Purple Heart. 5. The FSM's record is void of any evidence and the applicant has not provided any evidence showing he ever performed the duties of an infantryman in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size. Accordingly, there is insufficient evidence to award the FSM the CIB. 6. The FSM's records show he was awarded the Vietnam Service Medal. Evidence also shows he participated in six campaigns during his service in the Republic of Vietnam. Therefore, the FSM's DD Form 214 should be corrected to show one silver service star and one bronze service star to be affixed to his already-awarded Vietnam Service Medal. 7. General orders show two of the FSM's units were awarded the Meritorious Unit Commendation for actions during his tenure of assignment. Therefore, the FSM's DD Form 214 should be corrected to show two awards of the Meritorious Unit Commendation. 8. The ABCMR does not amend or correct records solely for the purpose of establishing eligibility for benefits from another agency. The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for benefits should be addressed to the DVA. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF __X_____ __X_____ ___X____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. deleting from item 24 of the FSM's DD Form for the period ending 31 July 1971 the Vietnam Service Medal and b. adding to item 24 of the FSM's DD Form 214 for the period ending 31 July 1971 the: * Vietnam Service Medal with one silver service star and one bronze service star * Meritorious Unit Commendation (2 awards) 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to correcting the FSM's record to show he was retired due to physical disability and to show award of the Purple Heart and the Combat Infantryman Badge. 3. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the FSM in service to our Nation. The applicant and all Americans should be justifiably proud of his service in arms. _________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) AR20100011655 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100011655 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1