2003089348C070403 by t1mYG7

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									                         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).
ABCMR Record of Proceedings (cont)                              AR2003089348



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.



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ABCMR Record of Proceedings (cont)                             AR2003089348


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.
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ABCMR Record of Proceedings (cont)                                 AR2003089348


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




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ABCMR Record of Proceedings (cont)        AR2003089348



                                  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.




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