RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           23 November 2004
      DOCKET NUMBER:  AR2004104514


      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).

2.  The applicant states, in effect, that his record does not indicate he
was awarded the CIB.  He states that he served in a combat unit in the
Republic of Vietnam (RVN) or 11 months as a tank gunner, infantry
reconnaissance track gunner and rifleman.  He further indicates he was
involved in dozens and dozens of firefights while assigned to this combat
unit.

3.  The applicant provides the following documents in support of his
application:  Photograph of Soldier Killed in Action, Third-Party Statement
and Unit
After-Action Reports.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 20 December 1969.  The application submitted in this case
is dated 24 February 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 was inducted into the Army and entered
active duty on 12 March 1968.  He was trained in and awarded military
occupational specialty (MOS) 11E (Armor Crewman) and the highest rank he
attained while serving on active duty was specialist four (SP4).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows that
he served in the RVN from 26 December 1968 through 17 December 1969.  Item
38 (Record of Assignments) shows that during his RVN tour, he was assigned
to Headquarters Battery, 3rd Battalion, 16th Artillery from 11 January
through February 1969 and to C Troop, 1st Squadron, 1st Cavalry from 3
February through 16 December 1969.  At both of these units, he was assigned
a duty MOS of 13A (Cannoneer).

5.  On 20 December 1969, the applicant was honorably discharged after
completing 1 year, 9 months and 9 days of active military service.  The
separation document (DD Form 214) he was issued at the time confirms he
held the MOS 11E.

6.  The applicant’s DD Form 214 and a correction (DD Form 215), issued on
1 February 2001, show he earned the following awards during his active duty
tenure:  Bronze Star Medal with Valor (“V”) Device, Purple Heart 1st Oak
Leaf Cluster, Army Good Conduct Medal, Vietnam Service Medal with 4 bronze
service stars, Republic of Vietnam Campaign Medal with Device 1960, and
Republic of Vietnam Gallantry Cross with Palm Unit Citation, Sharpshooter
Qualification Badge with Rifle Bar and 2 Overseas Bars.

7.  The applicant provides a third-party statement, unit after-action
reports and a photograph of a soldier of his unit that was killed in
action. These documents confirm the applicant’s participation in combat and
appear to indicate he was performing duties as an armor crewman.

8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part,
that the Combat Infantryman Badge (CIB) is awarded to infantry officers and
to enlisted and warrant officer personnel who have an infantry MOS.  They
must have served in active ground combat while assigned or attached to an
infantry unit of brigade, regimental or smaller size.  The Awards Branch of
the Human Resources Command (HRC) has advised, in similar cases, that
during the Vietnam era the CIB was awarded only to enlisted individuals who
held and served in MOS 11B, 11C, 11F, 11G, or 11H.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the CIB and the supporting
documents he provided were carefully considered.  However, by regulation,
in order to qualify for the CIB, in addition to serving in combat with a
qualifying unit, an enlisted soldier must have held an infantry MOS, which
according to Army HRC awards officials included MOS 11B, 11C, 11F, 11G AND
11H.  MOS 11E was not considered an infantry MOS for CIB purposes during
the Vietnam era.

2.  The evidence of record shows the applicant held and served in MOS 11E,
performing duties as an armor crewman and that during his RVN tour he also
served in MOS 13A as a cannoneer.  By regulation, neither of these MOSs
were among the infantry MOSs that qualified for award of the CIB.  Thus,
although the applicant’s RVN service was heroic, his request for the CIB
must be denied in the interest of all those who served in the RVN and who
faced similar circumstances.
3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 December 1969.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 19 December 1972.  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.

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.




            ____Fred Eichorn_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004104514                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/11/23                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1969/12/20                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Overseas Returnee                       |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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