RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 September 2006
      DOCKET NUMBER:  AR20060003479


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Marla Troup                   |     |Chairperson          |
|     |Mr. Chester Damian                |     |Member               |
|     |Mr. Edward 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 that his 3 days of being absent without leave
(AWOL) be removed from his DD Form 214 (Armed Forces of the United States
Report of Transfer or Discharge).  He also requests that he be awarded the
Combat Infantryman Badge (CIB) for his service with the 173rd Airborne
Brigade in Vietnam.

2.  The applicant states that he never received the CIB for his service
with the 173rd Airborne Brigade from March 1970 to February 1971.  He
states the
3 days of lost time is unjust because the charges against him were
dismissed.

3.  The applicant provides a copy of his DD Form 214 and casualty records
from the National Archives and Records Administration.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors which occurred
on 9 August 1971.  The application submitted in this case is dated 27
February 2006.

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 was inducted into the Army on 7 August 1969.  He
completed basic combat training at Fort Benning, Georgia and was reassigned
to Fort Dix, New Jersey for on-the-job training in military occupational
specialty (MOS)
94A (Food Service Apprentice).  He completed basic airborne training at
Fort Benning, Georgia in February 1970.

4.  On 12 March 1970, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from
6 March 1970 to 10 March 1970.  His punishment consisted of a forfeiture of
$60.00 pay per month for 2 months.  This period of AWOL is not recorded on
his DD Form 214.

5.  The applicant arrived in Vietnam and was assigned to Headquarters and
Headquarters Company, 3rd Battalion (Airborne), 503rd Infantry,
173rd Airborne Brigade on 20 March 1970 as a cook’s helper in duty MOS 94A.

6.  Headquarters Company, 3rd Battalion (Airborne), 503rd Infantry,
173rd Brigade Unit Orders Number 17, dated 27 March 1970, promoted the
applicant to private first class and awarded him primary MOS 94A1P
effective
27 March 1970.

7.  Headquarters, 173rd Airborne Brigade Special Orders Number 203, dated
22 July 1970, promoted the applicant to specialist four and awarded him
primary MOS 94B2P (Cook) effective 16 July 1970.

8.  Item 44 (Time Lost Under 972, Title 10, United States Code and
Subsequent to Normal Date ETS) on the applicant's DA Form 20 (Enlisted
Qualification Record) shows he was AWOL from 9 January 1971 to 11 January
1971.  There is no record of nonjudicial punishment for this period of
AWOL.

9.  The applicant departed Vietnam on 28 February 1971 and was credited
with participation in three campaigns.

10.  The applicant was released from active duty on 9 August 1971.  His
DD Form 214 shows the entry “9 Jan71-11 Jan71” in item 26a (Non-Pay Periods
Time Lost).  Item 30 (Remarks) on the applicant’s DD Form 214 shows the
entry “3 Days Loss (sic) Under 10 USC 972.”

11.  His DD Form 214 shows the National Defense Service Medal, the Vietnam
Service Medal, the Republic of Vietnam Campaign Medal with Device (1960),
two Overseas Service Bars, the Parachutist Badge, and the Marksman
Marksmanship Qualification Badge as authorized awards.

12.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign
Participation Credit Register) lists the unit awards received by units
serving in Vietnam.  This document shows that, at the time of applicant's
assignment to the 3rd Battalion, 503rd Infantry, this unit was cited for
award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation by
Department of the Army General Orders (DAGO) Number 51, dated 1971.

13.  Department of the Army Pamphlet 672-3 shows that, at the time of
applicant's assignment to the 3rd Battalion, 503rd Infantry, this unit was
cited for award of the Republic of Vietnam Civil Actions Honor Medal First
Class Unit Citation by DAGO Number 5, dated 1973.

14.  Army Regulation 635-5 (Separation Documents) establishes the
standardized policy for preparing and distributing the DD Form 214.  In
pertinent part, it directs that the dates of time lost during the current
enlistment will be entered on the DD Form 214.  Lost time under Title 10
U.S.C., section 972 is not creditable service for pay, retirement, or
veteran’s benefits; however, the Army preserves a record of time lost to
explain which service between date of entry on active duty and separation
date is creditable service for benefits.

15.  The Department of Defense (DoD) Financial Management Regulation states
that when a member is in an unauthorized absence status, an administrative
determination must be made as to whether the absence was unavoidable.  If
it is not excused as unavoidable, the member forfeits pay and allowances
for the period of absence.  This applies even though a court-martial finds
the member not guilty of a charge of unauthorized absence, or when a
finding of guilty has been disapproved by the reviewing authority (or if
charges have been dismissed).

16.  Army Regulation 600-8-22 provides, in pertinent part, that the CIB is
awarded to infantry officers and to enlisted and warrant officer persons
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.  The Awards Branch of the U.S. Army Human Resources Command
has advised, in similar cases, 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.

17.  Army Regulation 600-8-22, in pertinent part, authorizes award of a
bronze service star, based on qualifying service, for each campaign listed
in Appendix B of this regulation and states that authorized bronze service
stars will be worn on the appropriate service medal.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant served as a cook in duty MOS
94B with the 3rd Battalion, 503rd Infantry, 173rd Airborne Brigade in
Vietnam from 16 March 1970 to 28 February 1971.  There is no evidence of
record which shows he held an infantry MOS while assigned to the 173rd
Airborne Brigade during combat in Vietnam.  Therefore, he did not meet the
requirements for award of the CIB.

2.  The evidence of record shows the applicant was AWOL from 9 January 1971
to 11 January 1971.  In accordance with the applicable statute, AWOL is
lost time.


3.  There is no evidence of record which substantiates the applicant’s
claim that the charges regarding his 3 days of lost time (AWOL) were
dismissed.  Even if they had been, unless a determination was made that the
absence was unavoidable, it was still lost time.

4.  Based on the governing regulation, the Army preserves a record of time
lost to explain which service between date of entry on active duty and
separation date is creditable service for benefits.  The applicant's
inclusive dates of lost time due to AWOL appear to be properly reflected on
his DD Form 214.  Therefore, there is no basis for removing his period of
AWOL from his DD Form 214.

5.  The applicant received credit for participation in three campaigns
during the Vietnam War.  Therefore, his DD Form 214 should be corrected to
show three bronze service stars for wear on his Vietnam Service Medal.

6.  The applicant was assigned to a unit during a period it was awarded the
Republic of Vietnam Gallantry Cross with Palm Unit Citation and the
Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.
Therefore, these awards should be added to his DD Form 214.

7.  Evidence shows that the applicant’s records contain administrative
errors which do 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.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 August 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
8 August 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

MT______  CD______  EM______  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 errors 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 Vietnam Service Medal with three bronze
service stars, the Republic of Vietnam Gallantry Cross with Palm Unit
Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class
Unit Citation.




                                  Marla Troup___________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003479                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060926                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY WITH NOTE                          |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |100.0000                                |
|2.                      |123.0700                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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