RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         17 November 2005
      DOCKET NUMBER:  AR20050004935


      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             |
|     |Ms. Yvonne Foskey                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. John E. Denning               |     |Member               |
|     |Ms. 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 receive the CIB based on his
service in combat in the Republic of Vietnam (RVN).

3.  The applicant provides a separation document (DD Form 214) and a
Veterans of Foreign Wars (VFW) letter of transmittal of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 14 April 1970.  The application submitted in this case is
dated
24 March 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 he was inducted into the Army and entered
active duty on 15 April 1968.  He was trained in, awarded, and served in
military occupational specialty (MOS) 11B (Light Weapons Infantryman), and
the highest rank he attained while serving on active duty was sergeant
(SGT).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he
served in the RVN from 23 September 1968 through 16 September 1969.  During

his RVN tour, he was assigned to Company D, 2nd Battalion, 35th Infantry
Regiment, 4th Infantry Division, from 6 October 1968 through 25 January
1969 and from 15 April 1969 through 12 September 1969, performing duties in
MOS 11B as a rifleman.  He also served in Headquarters and Headquarters
Company (HHC), 3rd Brigade, 4th Infantry Division from 26 January 1969
through 14 April 1969, performing duties in MOS 11B as a rifleman.



5.  On 14 April 1970, the applicant was honorably separated after
completing
2 years of active military service.  Item 24 (Decorations, Medals, Badges,
Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his
DD Form 214 shows he earned the following awards during his active duty
tenure:  National Defense Service Medal (NDSM); Vietnam Service Medal
(VSM); Army Commendation Medal (ARCOM); Republic of Vietnam Campaign Medal
with 60 Device; 2 Overseas Bars; Sharpshooter Qualification Badge with
Rifle Bar; and Marksman Qualification Badge with Rifle and Machine Gun
Bars. The applicant authenticated this document with his signature in Item
32 (Signature of Person Being Transferred or Discharged).

6.  Army Regulation 600-8-22 (Military Awards) contains the Army’s awards
policy.  Chapter 8 of the award regulations contains guidance on award of
combat badges.  It states, in pertinent part, that the 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.  In
similar cases, the Awards Branch of the Human Resources Command (HRC) has
advised 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.

7.  Paragraph 2-13 of the awards regulation contains guidance on the VSM.
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 RVN campaigns.  It
shows that during the applicant’s tenure of assignment in the RVN, campaign
credit was authorized for the following four campaigns:  Vietnam
Counteroffensive Phase V, Vietnam Counteroffensive Phase VI, TET 69
Counteroffensive, and Vietnam-Summer-Fall 1969.

8.  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, the applicant’s unit (35th Infantry) earned the RVN
Gallantry Cross with Palm Unit Citation and the RVN Civil Actions Honor
Medal First Class Unit Citation.

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 and served in a qualifying infantry unit, but also
that he 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 and served in a qualifying infantry unit, does not confirm
his presence and personal participation in ground combat with his
qualifying infantry unit.  Further, the CIB is not included in the list of
awards contained in Item 41 of his 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.  In effect, his signature serves
as 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.

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

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 April 1970.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 13 April 1973.  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.

6.  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, RVN Civil Actions Honor Medal First Class
Unit Citation, and
4 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.  Therefore, 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

___LE  __  ___JED _  ___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 there is an administrative error in the records of
the individual should be corrected by the CMSD-St. Louis.  The records of
the individual concerned should be corrected to his entitlement to the
Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of
Vietnam Civil Actions Honor Medal First Class Unit Citation, and 4 bronze
service stars with his Vietnam Service Medal; and by providing him a
correction to his separation document that includes these awards.




                                  _____Lester Echols_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004935                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005/11/17                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1970/04/14                              |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |107                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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