RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           23 November 2004
      DOCKET NUMBER:  AR2004104004


      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. John T. Meixell               |     |Member               |
|     |Mr. Robert J. Osborn              |     |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, award of the Combat Infantryman
Badge (CIB), Bronze Star Medal, and Air Medal.

2.  The applicant states, in effect, that when the 9th Infantry Division
received orders to leave the Republic of Vietnam (RVN), he was shuffled
between infantry units.  He claims he has evidence showing he fought in
infantry units and that he received two awards of the Army Commendation
Medal (ARCOM).  He claims that he should have received the CIB.  He further
states that the unit awards he earned based on his RVN service have never
been added to his separation document (DD Form 214).

3.  The applicant provides a self-authored statement and a Certificate of
Combat Service in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10 of the United States Code, section 1130 (10 USC 1130) provides
the legal authority for consideration of proposals for decorations not
previously submitted in timely fashion.  It allows, in effect, that upon
the request of a Member of Congress, the Secretary concerned shall review a
proposal for the award or presentation of a decoration (or the upgrading of
a decoration), either for an individual or a unit, that is not otherwise
authorized to be presented or awarded due to limitations established by law
or policy for timely submission of a recommendation for such award or
presentation.  Based upon such review, the Secretary shall make a
determination as to the merits of approving the award or presentation of
the decoration.

2.  The applicant requests award of the Bronze Star Medal and Air Medal.
However, there are no orders or other evidence on file in his Official
Military Personnel File (OMPF) that confirms he is entitled to these
awards.  In the absence of authority for these awards, the applicant may
request award of the Bronze Star Medal and Air Medal under the provisions
of 10 USC 1130.  The applicant has been notified by separate correspondence
of the procedures for applying for these awards under 10 USC 1130.  As a
result, they will not be discussed further in this Record of Proceedings.
3.  The applicant’s record shows that was inducted into the Army and
entered active duty on 19 June 1968.  He successfully completed training in
and was awarded military occupational specialty (MOS) 05C (Radio/Teletype
Operator).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows that
he served in the RVN from 20 May 1969 through 11 March 1970.  During his
RVN tour, he served in MOS 05C as a radio/teletype operator with the
following
9th Infantry Division units for the periods indicated:  Headquarters and
Headquarters Company (HHC), 2nd Battalion, 39th Infantry Regiment, from
30 May through 15 July 1969; and HHC, 5th Battalion, 60th Infantry
Regiment, from 16 July through 2 November 1969.  It further shows he served
with Headquarters and Headquarters Detachment (HHD), 8th Transportation
Group, United States Army Pacific (USARPAC), from 3 November through 10
December 1969, performing duties in MOS 05C as a Team Chief; and with HHD,
54th Transportation Battalion, USARPAC, from 10 December 1969 through
11 March 1970, performing duties in MOS 31G as a communications chief.

5.  Item 41 (Awards and Decorations) of the applicant’s DA Form 20 shows he
earned the following awards during his tenure on active duty:  National
Defense Service Medal (NDSM), Vietnam Service Medal (VSM), RVN Campaign
Medal with 60 Device, ARCOM with 1st Oak Leaf Cluster, Sharpshooter
Qualification Badge with Rifle Bar (M-14) and Expert Qualification Badge
with Rifle Bar
(M-16).

6.  The applicant’s Military Personnel Records Jacket (MPRJ) contains
copies of orders awarding the applicant the ARCOM and ARCOM 1st Oak Leaf
Cluster.  The ARCOM was awarded for his outstanding achievement in
connection with military operations against a hostile force in the RVN on
28 May 1969 and the ARCOM 1st Oak Leaf Cluster was awarded for meritorious
service for the period January through July 1969.  There are no Air Medal
or Bronze Star Medal award orders on file.

7.  On 18 March 1970, the applicant was honorably separated.  The DD Form
214 he was issued at the time confirms that he completed a total of 1 year
and
9 months of active military service and that he held the rank of sergeant
on the date of his separation.  This document also shows that during his
active duty tenure, the applicant was awarded the NDSM, VSM, RVN Campaign
Medal, ARCOM with 1st Oak Leaf Cluster and 2 Overseas Bars.
8.  The applicant provides a copy of a Certificate of Combat Service issued
by the Commanding General (CG) of the 9th Infantry Division.  This document
indicates the applicant served with the 9th Infantry Division in armed
conflict against insurgent forces in the RVN.

9.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and
criteria concerning individual military awards.  Paragraph 2-13 of the
awards regulation contains guidance on award of the VSM and it states, in
pertinent part, that a bronze service star is authorized with this award
for each campaign a member is credited with participating in while serving
in the RVN.  Table B-1 contains a list of campaigns and it shows that
during the applicant’s tenure of assignment in the RVN, he was credited
with participating in the following three campaigns:  TET Counteroffensive
1969, Vietnam Summer-Fall 1969 and Vietnam Winter-Spring 1970.

10.  Paragraph 8-6 of the awards regulation contains the criteria for
awarding the CIB. It states, in pertinent part, 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.

11.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit
Register) establishes the eligibility of individual members for campaign
participation credit, assault landing credit, and unit citation badges
awarded during the Vietnam Conflict.  It confirms that during his tenure
the period he was assigned to the RVN, the applicant’s units earned the
Meritorious Unit Commendation, RVN Gallantry Cross with Palm Unit Citation
and RVN Civil Actions Honor Medal First Class Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  By regulation, there are three basic 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.  While the 9th Infantry Division Certificate provided by the
applicant confirms he served in combat with the 9th Infantry Division, it
does indicate he performed duties in an infantry MOS.  Thus, the regulatory
burden of proof necessary to support award of the CIB is not satisfied in
this case.

2.  Records show the applicant should have discovered the alleged error or
injustice related to award of the CIB now under consideration on 18 March
1970. Therefore, the time for him to file a request for correction of any
error or injustice expired on 17 March 1973.  However, he 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 timely file in this case.

3.  The evidence of record does show that based on his service and campaign
participation in the RVN, the applicant is entitled to the Meritorious Unit
Commendation, RVN Gallantry Cross with Palm Unit Citation, RVN Civil
Actions Honor Medal First Class Unit Citation and 3 bronze service stars
with his VSM.  The omission of these awards from his record is an
administrative matter that does not require Board action.  Therefore,
administrative correction of his records will be accomplished by the Case
Management Support Division (CMSD),
St. Louis, Missouri, 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

__RJO_ _  __FE___  __JTM___  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 Meritorious Unit Commendation, Republic of
Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil
Actions Honor Medal First Class Unit Citation and 3 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                 |AR2004104004                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/11/23                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1970/03/19                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |School Early Release                    |
|BOARD DECISION          |GRANT PLUS                              |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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