RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           1 December 2005
      DOCKET NUMBER:  AR20050007404


      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. John T. Meixell               |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Richard G. Sayre              |     |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 be entitled to the CIB based
on his combat service as a tank mechanic/infantryman because he repaired
tanks in the heat of battle and fired his grenade launcher (M-79) and
killed enemy forces.

3.  In his application, the applicant indicates he is providing photos and
a written statement in support of his application.  However, no documentary
evidence was included with the application that arrived at the Board for
review.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 6 November 1972, the date of his release from active duty
(REFRAD).  The application submitted in this case is dated 25 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 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 military records were not made available to the Board.
This case is being considered using reconstructed records that primarily
consists of the applicant’s separation document (DD Form 214).

4.  The applicant’s DD Form 214 shows he enlisted in the Regular Army and
entered active duty on 5 January 1970.  It also shows he was trained in,
awarded and served in military occupational specialty (MOS) 63C (Track
Vehicle Mechanic).  The separation document also confirms he served in the
Republic of Vietnam (RVN) from 13 August 1970 through 15 June 1971.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and
Campaign Ribbons Awarded or Authorized) shows that the applicant earned the
following awards during his tenure on active duty:  National Defense
Service Medal; Vietnam Service Medal; Vietnam Campaign Medal with 60
Device; and
1 Overseas Bar.
6.  On 6 November 1972, the applicant was honorably separated, in the rank
of specialist five, after completing 2 years, 10 months and 2 days of
active military service.

7.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he is entitled to the CIB was carefully
considered.  However, as confirmed by the HRC Awards Branch, during the
Vietnam era, award of the CIB was only authorized for enlisted individuals
who held and served in MOS 11B, 11C, 11F, 11G, or 11H.

2.  The veracity of the applicant’s claim that he served in combat and
killed enemy forces is not in question.  However, the evidence in this case
confirms he held the MOS 63C, and by his own admission he served as a tank
mechanic during his RVN tour.  Thus, the regulatory criteria necessary to
support award of the CIB has not been satisfied in this case.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration related to award of the CIB on 6 November
1972, the date of his separation.  Thus, the time for him to file a request
for correction of any error or injustice expired on 5 November 1975.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JTM__  ___ML __  ___RGS_  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.




            ____John T. Meixell  ____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050007404                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/12/01                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1972/11/06                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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