RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         6 December 2005
      DOCKET NUMBER:  AR20050005211


      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. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Donald W. Steenfott           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 while proudly fighting for his
country in the Republic of Vietnam (RVN), with Headquarters and
Headquarters Company (HHC), 2nd Battalion, 502nd Infantry Regiment, he was
awarded the CIB.  He further states that he has been wearing the CIB to
Veterans’ functions for the past 37 years.  He claims that he was
hospitalized upon his return from the RVN, and his records were lost.  As a
result, he was separated using temporary records and has been unsuccessful
in locating his records over the years.

3.  The applicant provides the following documents in support of his
application: Self-Authored Letter; Separation Document (DD Form 214);
Separation Document Correction (DD Form 215); Clinical Record Cover Sheet
(DA Form 8-275-3); Record of Proceedings Under Article 15, Uniform Code of
Military Justice (UCMJ); Enlisted Qualification Record (DA Form 20);
Clinical Record Narrative Summary; Chronological Record of Medical Care;
Malaria Debriefing (MACV Form 270); Airborne Course Diploma; and 101st
Airborne Newsletter Extracts.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 27 May 1968.  The application submitted in this case is
dated
4 April 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 28 May 1965.  He was trained in, awarded, and served in
military occupational specialty (MOS) 11C (Mortarman), and the highest rank
he attained while serving on active duty was specialist (SPC).
4.  The applicant’s temporary Enlisted Qualification Record (DA Form 20)
shows he served in the RVN from December 1966 through December 1967.  Item
38
(Record of Assignment) is void of any entry showing his unit of assignment
while serving in the RVN, and Item 41 (Awards and Decorations) does not
include the CIB in the list of authorized awards entered.

5.  The applicant’s Military Personnel Records Jacket (MPRJ) contains a
Record of Proceedings Under Article 15, UCMJ, dated 22 June 1967.  This
document shows he accepted nonjudicial punishment (NJP) for his failure to
obey a direct order from a superior commissioned officer.  It also shows he
was assigned to HHC, 2nd Battalion, 502nd Infantry Regiment, 1st Brigade,
101st Airborne Division on the date of the NJP action.  His record also
contains Headquarters, 1st Brigade, 101st Airborne Division Special Orders
Number 184, dated 3 July 1967.  These orders reduced him from SPC to
private first class (PFC) based on the 22 June 1967 NJP action.  This
document also shows his unit of assignment as HHC, 2nd Battalion, 502
Infantry Regiment, 1st Brigade, 101st Airborne Division.

6.  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.

7.  On 27 May 1968, the applicant was honorably separated after completing
3 years of active military service.  Item 24 (Decorations, Medals, Badges,
Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his
DD Form 214, as amended by a DD Form 215 dated 9 June 1975, shows he earned
the following awards during his active duty tenure:  National Defense
Service Medal (NDSM); Parachutist Badge; Vietnam Service Medal with
2 Bronze Service Stars; Vietnam Campaign Medal with 60 Device; and RVN
Gallantry Cross with Palm Unit Citation.

8.  The applicant provides extracts of a unit newsletter that show the 2nd
Battalion, 502nd Infantry Regiment was engaged in combat.  However, these
documents contain no specific reference to HHC.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the CIB and the newsletter
extracts he provided 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 personally present with the unit at a time when it engaged in
active ground combat, and that he actively participated in such ground
combat.  In this case, while the record confirms he held a qualifying
infantry MOS and service in a qualifying infantry unit, there is no
evidence to confirm his personal participation in combat with his unit.

2.  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.  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.  Therefore,
there is a presumption of regularity that the information contained on the
separation document, to include the list of awards, is correct.

4.  The record shows the applicant was assigned to a HHC.  These companies
are normally headquarters and support elements and do not always have a
day-to-day combat mission.  As a result, absent 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.

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 now under consideration on 27 May 1968.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
26 May 1971.  The applicant 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

___BPI __  __DWS _  __EEM __  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.




                                  _____Bernard P. Ingold ___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050005211                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005/12/06                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1968/05/27                              |
|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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