RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 November 2005
      DOCKET NUMBER:  AR20050008457


      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. Maria C. Sanchez              |     |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 award of the Combat Infantryman Badge and an
upgrade of his discharge to an honorable discharge.

2.  The applicant states that he did not serve as a clerk, but as an "APC
[Armored Personnel Carrier] track driver" while in Vietnam which entitles
him to an award of the Combat Infantryman Badge.  He also states that he
was assured he should have received an honorable discharge at the time of
separation; however, an administrative error was made.

3.  The applicant provides a four-page self-authored letter, dated 23
February 2005, and a copy of Army Board for Correction of Military Records
Docket Number AR20040002752, dated 3 February 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 26 January 1971, the date of his separation from active duty.
The application submitted in this case is dated 31 May 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 enlisted in the Army on 31 July 1967 for a period of 3
years.  After completion of basic and advanced individual training, he was
awarded military occupational specialty (MOS) 71H (Troop Clerk).  He served
in Vietnam for the period 1 January 1968 through 25 December 1968.  He was
discharged on 26 January 1971 with a general discharge.

4.  The applicant's records contain a DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge) and DD Form 215 (Correction
to DD Form 214) do not show award of the Combat Infantryman Badge.



5.  Item 38 (Record of Assignments) of the applicant's DA Form 20 (Enlisted
Personnel Record) shows that during his service in Vietnam, he served in
MOS 71H20 (Troop Clerk) and MOS 17K20 (Ground Surveillance Radar Crewman)
while assigned to Headquarters and Headquarters Troop, 1st Squadron of the
1st Cavalry.  There are no orders or documentation that shows the applicant
served in another MOS while in Vietnam.

6.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part,
that the Combat Infantryman Badge is awarded to infantry officers and to
enlisted and warrant officer persons who have an infantry military
occupational specialty (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 U.S. Army Human
Resources Command (formerly known as the Total Army Personnel Command) has
advised, in similar cases, that during the Vietnam era the Combat
Infantryman Badge was awarded only to enlisted individuals who held and
served in MOS 11B, 11C, 11F, 11G, or 11H.

7.  The applicant's service records reveal a disciplinary history that
includes his acceptance of nonjudicial punishment (NJP) under the
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on
the following twelve separate occasions for the offenses indicated:  on 27
June 1968, for failure to obey a lawful order; on 28 July 1968, for being
found asleep on his post; on 14 April 1969, for being drunk in a public
place and being apprehended by civil police; on 24 May 1969, for being
drunk in a public place and being apprehended by civil police; on 27 June
1969, for breaking restriction limits; on 27 June 1969, for breaking
restriction; on 20 October 1969, for violating a lawful general regulation;
on 27 October 1969, for failure to go to his appointed place of duty at the
time prescribed; 5 November 1969, for failure to obey an issued lawful
order (two specifications), on 26 January 1970, for being absent without
leave (AWOL); on 19 March 1970, for breaking restriction; and on 1 May
1970, for failure to obey a lawful regulation.

8.  On 25 February 1968, a summary court-martial convicted the applicant
for operating a vehicle in a reckless manner, driving on the wrong side of
the road, and causing it to strike another vehicle.  The resultant sentence
included forfeiture of $25.00 per month for one month.

9.  On 9 April 1970, a special court-martial convicted the applicant for
AWOL during the periods 6 February 1970 through 17 February 1970 and 24
February 1970 through 26 February 1970.  The resultant sentence included
confinement at hard labor for three months.

10.  On 22 October 1970, a special court-martial convicted the applicant
for AWOL during the period 11 May 1970 through 17 July 1970.  The resultant
sentence included forfeiture of $70.00 per month for six months, and
confinement at hard labor for six months.

11.  Item 44 (Time Lost) of the applicant's DA Form 20 shows that he was
confined during the period 31 August 1970 through 28 October 1970.

12.  The applicant's DD Form 214 shows that he was discharged on 26 January
1971, under the provisions of section VI, chapter 2 of Army Regulation 635-
200, for expiration of term of service, and issued a General Discharge
Certificate.  He had served 3 years, 1 month and 1 day of net active
service and 146 days of lost time due to AWOL and confinement.

13.  The applicant submitted a letter, dated 23 February 2005, wherein he
states that he did not receive award of the Combat Infantryman Badge at the
time he was discharged and believes he is entitled to the award since he
served as an "APC track driver" while in Vietnam.  He further indicates
that when he entered the Army, he was trained as a military policeman;
however, when he arrived in Vietnam, he served as a track driver and
sometimes on a "flame throwing track."

14.  The applicant continues that, on the date of his separation, his
battalion commander assured him he would receive an honorable discharge
because he was a good soldier.  He believes that whoever did his discharge
papers did not agree with his commander and feels betrayed by the Army
system.

15.  There is no evidence in the available records which shows that the
applicant applied to the Army Discharge Review Board for an upgrade of his
discharge within that board’s 15-year statute of limitation.

16.  Army Regulation 635-200 (Personnel Separations Enlisted Personnel)
provides the basic authority for the separation of enlisted personnel.
Paragraph 2-18 of Section VI provides that separation under expiration of
term of service will be accomplished by the transfer facility processing
the member for separation pursuant to the discharge order issued by the
appropriate commander.

17.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member's service generally has met the standards of
acceptable conduct
and performance of duty for Army personnel (emphasis added), or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.  Whenever there is doubt, it is to be resolved in favor of
the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been awarded the Combat
Infantryman Badge, because while in combat, he served as an "APC track
driver" while in Vietnam.

2.  The records available contain no evidence which shows the applicant was
awarded the Combat Infantryman Badge.  Contrary to the applicant's
contention, evidence shows he served as a troop clerk and as a guard
surveillance radar crewman while serving in Vietnam.

3.  There is no evidence that the applicant served in an infantry
specialty, served in an infantry unit of regimental size or smaller in
ground combat all of which are required by regulation for award of the
Combat Infantryman Badge.  In view of these facts, there is insufficient
basis for award of the Combat Infantryman Badge.

4.  The applicant contends that an administrative error was made when he
was issued a general discharge.  The applicant states that he was assured
he would be given an honorable discharge because he was a good soldier.

5.  The preponderance of evidence shows the applicant had an extensive
record of indiscipline which includes twelve nonjudicial punishments and
three courts-martial.

6.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  Therefore, he is not entitled to an honorable
discharge.

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




8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 January 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 25 January 1974.  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

_JM_____  _LE_____  _JED____  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.




                                      _Lester Echols___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050008457                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051117                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1971/01/26                              |
|DISCHARGE AUTHORITY     |AR 635-200, ch 2, section VI            |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  157  |107.0111/CIB                            |
|2.  189                 |110.0000/discharge                      |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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