RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           13 September 2005
      DOCKET NUMBER:  AR20050001811


      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:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Robert Rogers                 |     |Member               |
|     |Mr. Jeanette R. McCants           |     |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, he should have been awarded the CIB
based on his combat service in the Republic of Vietnam (RVN) in military
occupational specialty (MOS) 11B (Infantryman).

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 13 December 1967.  The application submitted in this case
is dated 27 January 2005.

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 limitations 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 that he was inducted in the Army and
entered active duty on 27 December 1965.  He was trained in and awarded
military occupational specialty (MOS) 11B (Infantryman), 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 he
served in the RVN from 3 June 1966 through 23 May 1967.  During his RVN
tour, he was assigned to the Military Assistance Command, Vietnam (MACV),
performing duties in MOS 11B, as a security guard.  Item 41 (Awards and
Decorations) shows he earned the following awards during his active duty
tenure: National Defense Service Medal (NDSM), Vietnam Service Medal (VSM)
with
1 bronze service star and RVN Campaign Medal.

5.  The applicant’s Military Personnel Records Jacket (MPRJ) is void of any
orders, or other documents indicating he was ever recommended for, or
awarded the CIB by proper authority.

6.  On 13 December 1967, the applicant was honorably separated at
the expiration of his term of service.  The DD Form 214 he was issued
shows he completed a total of 1 year, 11 months and 17 days of active
military service.  Item 24 (Decorations, Medals, Badges, Commendations,
Citations and Campaign Ribbons Awarded or Authorized) shows he earned the
following awards during his active duty tenure:  NDSM, VSM with 1 bronze
service star and RVN Campaign Medal.

7.  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.

8.  Chapter 8 of the awards regulation contains guidance on the CIB.  It
states, in pertinent part, that there are basically three requirements for
award of the CIB.  The Soldier must have an infantry MOS, must have served
in active ground combat while assigned or attached to an infantry unit of
brigade, regimental or smaller size, and must have actively participated
when the unit was engaged in active ground combat.

9.  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 of
assignment in the RVN, his unit (MACV) earned the RVN Gallantry Cross with
Palm Unit Citation, and campaign credit was granted for the Vietnam
Counteroffensive Phase I and Vietnam Counteroffensive Phase II campaigns.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the CIB and the supporting
evidence he submitted were carefully considered.  However, in order to
support award of the CIB, there must be evidence not only that the member
held an infantry MOS, but also that he served in a qualifying infantry unit
of brigade, regimental or smaller size, and was present with the unit at a
time when it engaged in active ground combat, and that he actively
participated in such ground combat.

2.  The evidence of record in this case, while showing the applicant held
an infantry MOS, does not indicate he served in qualifying infantry unit
and actively participated with that unit in ground combat.  The record
confirms he served in the MACV, performing duties as a security guard.

3.  The CIB is not included in the list of awards contained in Item 41 of
the applicant’s DA Form 20, or in the list of authorized awards contained
on his
DD Form 214, which he authenticated with his signature on the date of his
separation.  This signature, in effect, was his verification that the
information contained on the separation document, to include the list of
awards, was correct at the time it was prepared and issued.

4.  Absent any evidence confirming the applicant’s active participation in
ground combat with his qualifying infantry unit of brigade, regimental or
smaller size, the regulatory burden of proof necessary to support award of
the CIB has not been satisfied in this case.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice related to award of the CIB on 13 December 1967.  Thus, the time
for him to file a request for correction of any error or injustice expired
on
12 December 1970.  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.

7.  The evidence does show that based on his service and campaign
participation in the RVN, the applicant is entitled to the RVN Gallantry
Cross with Palm Unit Citation and 2 bronze service stars with his VSM.  The
omission of these awards from his record and separation document is an
administrative matter that does not require Board action.  Thus, the Case
Management Support Division (CMSD), St. Louis, Missouri will make the
corrections outlined in paragraph 3 of the BOARD
DETERMINATION/RECOMMENDATION section below.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___SLP__  __RLD__  __JRM __  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 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 his entitlement to the Republic of Vietnam Gallantry
Cross with Palm Unit Citation and 2 bronze service stars with his Vietnam
Service Medal; and by providing him a corrected separation document that
includes these awards.




            ____Shirley L. Powell_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050001811                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/09/13                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1967/12/13                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY with Admin Note                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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