RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 August 2006
      DOCKET NUMBER:  AR20050016254


      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. Dean L. Turnbull              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis L. Greenway            |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Ms. Peguine M. Taylor             |     |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 correction to his records to show the award of
the Combat Infantryman Badge.

2.  The applicant states, in effect, that he was issued the Combat
Infantryman Badge while he was assigned to Company C, 1st Battalion, 28th
Infantry of the Big Red One in the Republic of Vietnam.  He adds that his
brother was assigned to the same unit, and he was issued the Combat
Infantryman Badge.  However, it was not recorded on his DD Form 214 (Armed
Forces of the United States Report of Transfer or Discharge).

3.  The applicant provides a copy of an Application for Certificate of
Eligibility for California Veterans Farm and Home Purchase - Veterans
Educational Assistance and a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 17 January 1970 the date of his release from active duty.
 The application submitted in this case is dated 1 November 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 records show that he was inducted in the Army of the
United States and entered active duty on 25 January 1968.  He successfully
completed basic combat training, advanced individual training and was
awarded the military occupational specialty 11H10 (Infantry Direct Fire
Crewman).  On 24 June  
1968, he was reclassified to 11B10, (Light Weapons Infantryman).

4.  His records show he was assigned to Company C, 1st Battalion, 28th
Infantry, 1st Infantry Division in the Republic of Vietnam during the
period 13 January 1969 to 8 May 1969.  On 17 May 1969, the applicant
submitted a DA Form  
2496-1 (Disposition Form) to request deferment from assignment to a hostile
area.
5.  His records also show he was assigned to Company A, 2nd Battalion,  
32nd Infantry, 7th Infantry Division in the Republic of Korea during the
period  
9 May 1969 to 16 January 1970.  On 17 January 1970, the applicant was
honorably released from active duty after serving 1 year, 11 months and 23
days of active service.

6.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and
Campaign Ribbons Awarded or Authorized) of the DD Form 214 shows the award
of National Defense Service Medal, Republic of Vietnam Service Medal, and
Armed Forces Expeditionary Medal (Korea); however, it does not show the
award of the Combat Infantryman Badge.

7.  There are no orders in the applicant's records awarding him the Combat
Infantryman Badge.

8.  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.  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.

9.  The applicant's record indicates entitlement to additional awards and
decorations not shown on his DD Form 214.

10.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign
Participation Credit Register) lists the unit awards received by units
serving in the Republic of Vietnam.  This document shows the unit, to which
the applicant was assigned 1st Battalion, 28th Infantry Division, was cited
for award of the Republic of Vietnam Civil Actions Honor Medal, First Class
Unit Citation based on Department of the Army General Order Number 53,
dated 1970.

11.  Department of the Army Pamphlet 672-3 lists the unit awards received
by units serving in the Republic of Korea.  This document shows the unit,
to which the applicant was assigned Company A, 2nd Battalion, 32nd
Infantry, 7th Infantry Division was cited for award of the Republic of
Korea Presidential Unit Citation based on Department of the Army General
Order Number 50, dated 1971.

12.  His records show that he was awarded the Republic of Vietnam Service
Medal.  However, his DD Form 214 does not show any bronze service stars
indicating campaign credit.

13.  Appendix B of Army Regulation 600-8-22 in pertinent part, shows that
based on the applicant's dates of service in the Republic of Vietnam, he
participated in the Republic of Vietnam Counteroffensive Phase VI (2
November 1968 to 
22 February 1969); and Tet 69 Counteroffensive,1969 (23 February 1969 to 
8 June 1969).  This same regulation states that a bronze service star will
be awarded for wear on the Republic of Vietnam Service Medal for
participation in each campaign.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction to his records to show the Combat
Infantryman Badge.

2.  There are no general orders that show the applicant was awarded the
Combat Infantryman Badge.  The applicant's records do show he was assigned
to an Infantry unit; however, there is no evidence in the available records
to show he was present under fire while engaged in ground combat with the
enemy.  DA Form 2496-1, also shows that the applicant requested a deferment
from assignment to hostile fire area solely because his brother was serving
in the Republic of Vietnam at the same time.  Therefore, he is not entitled
to correction of his records to show the Combat Infantryman Badge.

3.  The applicant's copy of the Department of Veterans Affairs Application
for Certificate of Eligibility for California Veterans Farm and Home
Purchase - Veterans Educational Assistance does not establish that the
applicant is entitled to the Combat Infantryman Badge.

4.  Orders show that 1st Battalion, 28th Infantry Division, was awarded the
Republic of Vietnam Civil Actions Honor Medal, First Class Unit Citation,
and orders show that Company A, 2nd Battalion, 32nd Infantry, 7th Infantry
Division, was awarded the Republic of Korea Presidential Unit Citation.
Therefore, he is entitled to correction of his records to show these
foreign unit awards.

5.  Evidence of records show he participated in two campaigns during his
service in the Republic of Vietnam.  Therefore, he is entitled to two
bronze service stars to be affixed to his Republic of Vietnam Service
Medal.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 January 1970, the date of his
released from active duty; therefore, the time for the applicant to file a
request for correction of any error or injustice expired on 16 January
1973.  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.

7.  Evidence shows that the applicant’s records contain administrative
error which does not require action by the Board.  Therefore,
administrative correction of the applicant’s records will be accomplished
by the Case Management Support Division (CMSD), St. Louis, Missouri, as
outlined by the Board in paragraph 3 of the BOARD
DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___clg___  ___jbg__  ___pmt___  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 concerned should be corrected.  Therefore, the Board requests
that the CMSD-St. Louis administratively correct the records of the
individual concerned to show the Republic of Vietnam Civil Actions Honor
Medal, First Class Unit Citation, the Republic of Korea Presidential Unit
Citation, and two bronze service stars to be affixed to the Republic of
Vietnam Service Medal.




                                  __________Curtis L. Greenway______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016254                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060810                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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