RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            10 February 2005
      DOCKET NUMBER:  AR20040000576


      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. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Ms. Laverne V. Berry              |     |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, that he be awarded the Combat
Infantryman Badge (CIB).

2.  The applicant states, in effect, that he was stationed at the Khe Sanh
Villiage Headquarters compound, Republic of Vietnam (RVN) as a second
lieutenant (2LT) when it came under attack on 21 and 22 January 1968.  He
states that he was a military intelligence (MI) officer assigned to the
525th MI Group during the siege.  He states that it is his belief that this
service meets the requirement for award of the CIB.

3.  The applicant provides a copy of his separation document (DD Form 214)
in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 6 May 1970.  The application submitted in this case is
dated 4 May 2004.

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 record shows he served on active duty in the Army in an
enlisted status for 1 year, 4 months and 14 days from 29 October 1965
through 12 March 1967.  On 13 March 1967, he was appointed a 2LT and
entered active duty in an officer status.  He was trained in, awarded and
served in the primary military occupational specialty (MOS) 9668 (Area
Intelligence Officer).

4.  The applicant’s Officer Qualification Record (DA Form 66) shows that he
served in the RVN from 8 October 1967 through 4 October 1968.  Item 18
(Record of Assignments) shows that during his RVN tour, he was assigned to
149th MI Group, performing duties in specialty 9668 as an Area Intelligence
Officer with the 1st Battalion, 525th MI Group.

5.  Item 21 (Awards and Decorations) of the applicant’s DA Form 66 shows
that during his active duty tenure, he earned the National Defense Service
Medal (NDSM), Army Good Conduct Medal (AGCM), Vietnam Service Medal (VSM),
and RVN Campaign Medal with 60 Device.  Item 22 (Campaigns) shows he
participated in the following four campaigns during his RVN service:
Vietnam Counteroffensive Phase III, TET Counteroffensive, Vietnam
Counteroffensive Phase IV and Vietnam Counteroffensive Phase V.

6.  On 6 May 1970, the applicant was honorably separated after completing a
total of 4 years, 6 months and 8 days of active military service.  The DD
Form 214 he was issued upon separation confirms he earned the following
awards during his active duty tenure:  NDSM. AGCM, VSM, RVNCM with 60
Device, and 2 Overseas Bars.  It also indicates he participated in the
Vietnam Counteroffensive Phase III, Vietnam Counteroffensive Phase IV,
Vietnam Counteroffensive Phase V and TET Counteroffensive campaigns.

7.  Army Regulation 600-8-22 (Military Awards) contains the Army’s awards
policies.  Paragraph 2-13 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 participation in.

8.  Chapter 8 of the awards regulation contains guidance on award of the
CIB.  It states 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.  It further indicates that an Army officer must be an
infantry or special forces officer in the grade of colonel or below and
that personnel with other than an infantry or special forces MOS are not
eligible, regardless of the circumstances.

9.  The awards regulation provides a special provision for the RVN that
states that any officer whose basic branch is other than infantry who,
under appropriate orders, has commanded a line infantry (other than a
headquarters unit) unit of brigade, regimental, or smaller size for at
least 30 consecutive days is deemed to have been detailed in infantry and
is eligible for award of the CIB.  The regulation provides no other special
provisions for non-infantry officers to receive the CIB.

10.  Department of the Army General Order Number 8, dated in 1974,
authorized the award of the Republic of Vietnam Gallantry Cross with Palm
Unit Citation to all personnel assigned to the RVN from 8 February 1962
through 28 March 1973.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the CIB was carefully
considered.  However, there is insufficient evidence to support granting
the requested relief.

2.  By regulation, during the Vietnam era, in order to qualify for the CIB
an Army officer must have been an infantry or special forces officer in the
grade of colonel or below, or assigned as a commander and served in a line
infantry unit of brigade, regimental, or smaller size for at least 30
consecutive days.  The officer must also have been assigned to a qualifying
infantry unit that engaged in active ground combat and must actively
participated in such ground combat in order to have been awarded the CIB,
campaign or battle credit alone is not sufficient to receive the award.
Further, the regulation stipulates that personnel with other than an
infantry or special forces MOS are not eligible for the CIB, regardless of
the circumstances.

3.  The veracity of the applicant’s claim that he was present and
participated in combat during a North Vietnamese Army attack is not in
question.  However, by regulation, participation in combat alone does not
satisfy the regulatory criteria necessary to support award of the CIB.
Therefore, notwithstanding his admirable participation in combat, the
regulatory criteria necessary to support award of the CIB has not been
satisfied in this case.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 May 1970.  Therefore, the time for
him to file a request for correction of any error or injustice expired on 5
May 1973.  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.

5.  The evidence does show that based on his RVN service and campaign
participation, the applicant is entitled to the RVN Gallantry Cross with
Palm Unit Citation and 4 bronze service stars with his VSM.  However, the
absence of these awards from his record and separation document is an
administrative matter that does not require Board action to correct.  Thus,
the Case Management Support Division (CMSD), St. Louis, Missouri, will be
requested to correct the applicant’s record as outlined by the Board in
paragraph 3 of the
BOARD DETERMINATION/RECOMMENDATION section below.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JRS_  ___FE___  __LVB___  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 an administrative error in the records of the
individual should be corrected.  Therefore, the Board requests that the
CMSD-St. Louis administratively correct the records of the individual
concerned to show that based on his service and campaign participation in
the RVN, he is entitled to the Republic of Vietnam Gallantry Cross with
Palm Unit Citation and
4 bronze service stars with his Vietnam Service Medal; and by providing him
a corrected separation document that includes these awards.




            ____Fred Eichorn_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040000576                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/02/10                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1970/05/06                              |
|DISCHARGE AUTHORITY     |AR 635-100                              |
|DISCHARGE REASON        |Completion of Svc                       |
|BOARD DECISION          |DENY with Note                          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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