RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 April 2007
	DOCKET NUMBER:  AR20060010907 


	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.


X

	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 during his service in the Republic of Vietnam (RVN), he served with Company C, 2nd Battalion, 8th Infantry Brigade, 1st Armored Cavalry, as the unit commander.  He states that during his service in the RVN, he served in combat as an infantry officer and feels he is entitled to award of the CIB.

3.  The applicant provides his Separation Document (DD Form 214) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 2 September 1973.  The application submitted in this case is dated 18 July 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's record shows he served in the North Dakota Army National Guard in an enlisted status from 1 September 1965 until 28 May 1969, at which time he was honorably separated in order to accept a commission.  

4.  On 29 May 1969, the applicant was appointed a second lieutenant (2LT) in the United States Army Reserve (USAR), and entered active duty in that status.  His record shows he served in the following specialties during his active duty tenure:  4200 (Supply & Service Officer), 1542 (Infantry Officer), and 9316 (Interrogation Officer), and highest rank he attained while serving on active duty was first lieutenant.  


5.  The applicant’s Officer Qualification Record (DA Form 66) shows he served in the RVN from 8 September 1971 through 17 August 1972.  During his RVN tour, he was assigned to Headquarters and Headquarters Company, 1st Battalion, 327th Infantry Regiment from 12 September 1971 through 12 January 1972, performing duties as a property book officer.  It also shows he was assigned to Company C, 2nd Battalion, 8th Cavalry Regiment, 3rd Brigade, 1st Cavalry Division from 28 January 1972 through 24 April 1972, performing duties as a rifle platoon leader and to the 45th Military Police Company from 1 May 1972 through 
14 August 1972, performing duties as an interrogation officer.

6.  Item 21 (Awards and Decorations) of the applicant’s DA Form 66 shows that during his active duty tenure, he earned the National Defense Service Medal; Parachutist Badge; Vietnam Service Medal, Vietnam Campaign Medal, Bronze Star Medal, Expert Marksmanship Qualification Badge with Rifle Bar; Sharpshooter Marksmanship Qualification Badge with Pistol Bar; and 1 Overseas Service Bar.  

7.  The applicant's records contain a citation for award of the Bronze Star Medal (BSM).  This document indicates the applicant was awarded the BSM for meritorious service in connection with military operations against a hostile force in the RVN during the period August 1971 through August 1972.  It states, in effect, that while serving in positions of great trust and responsibility with the 
1st Battalion, 327th Infantry Brigade, 101st Airborne Division and with the 
2nd Battalion, 8th Cavalry Regiment, 3rd Brigade, that he was directly responsible for the meticulous stand down of the two combat units to which he was assigned due to his tireless efforts and outstanding managerial expertise.  It further states, in effect, that as a participant in numerous heli-borne assault operations in Military Region III, he ably led his platoon through combat situations without incurring any casualties.  

8.  Headquarters, United States Army Vietnam/MACV Support Command, General Orders Number 2277, dated 27 September 1972, awarded the applicant the Bronze Star Medal (BSM).  

9.  On 2 September 1973, the applicant was honorably released from active duty (REFRAD) after completing 4 years, 3 months, and 4 days of active military service.  The DD Form 214 he was issued at the time shows he earned the following awards during his tenure on active duty:  National Defense Service Medal; Vietnam Campaign Medal with 1960 Device; Vietnam Service Medal; Parachutist Badge; Bronze Star Medal; and Air Medal.  The applicant authenticated this document with his signature on the date of his separation.  

10.  Paragraph 2-13 of the awards regulation contains guidance on the VSM.  It states, in pertinent part, that a bronze service star is authorized with this award for each campaign a member is credited with participating in while serving in the RVN.  Table B-1 contains a list of RVN campaigns.  It shows that during the applicant’s tenure of assignment in the RVN, campaign credit was authorized for the Consolidation I, Consolidation II, and Vietnam CEASE-Fire.  

11.  Chapter 8 of the awards regulation contains guidance on award of the CIB.  It states that there are basically three requirements for award of the CIB.  The Soldier must be an infantryman satisfactorily performing infantry duties, must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and must actively participate in such ground combat.  Campaign or battle credit alone is not sufficient for award of the CIB.  It further indicates that an Army officer must be an infantry or special forces officer in the grade of colonel or below and that personnel with other than an infantry or special forces MOS are not eligible, regardless of the circumstances.  

12.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign participation credit, assault-landing credit, and unit citation badges awarded during the Vietnam Conflict.  It confirms that during the his tenure of assignment in the RVN, the applicant’s unit (1st Battalion, 327th Infantry Regiment) earned the RVN Gallantry Cross with Palm Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention of entitlement to award of the CIB was carefully considered.  However, by regulation, in order to support award of the CIB there must be evidence not only that the member held and served in an infantry specialty in a qualifying infantry unit, but also that he was personally present and participated with his qualifying infantry unit while it was engaged in active ground combat with enemy forces.  

2.  The evidence of record confirms that during his RVN tour, the applicant served as an infantry officer for little over 3 months from 28 January through 
24 April 1972.  A BSM certificate on file for the applicant does indicate that while serving as an infantry platoon leader, he ably led his platoon through combat situations without incurring any casualties.  However, the language in this certificate, which was prepared by his last unit in the RVN where he was serving as an Interrogator, is vague does not specifically document his participation in active ground combat with enemy forces.  
3.  Further, the applicant's record is void of any documents that indicate he was either recommended for or awarded the CIB by proper authority while serving in the RVN, and it is reasonable to presume that had he qualified for the CIB based on his three months of service as a rifle platoon leader, he would have been awarded the CIB by proper authorities at the time.  

4.  In addition, the CIB is not included in the list of awards contained on the applicant's DD Form 214, which he authenticated with his signature on the date of his separation.  In effect, his signature was his verification that the information contained on the separation document, to include the list of awards, was correct at the time the DD Form 214 was prepared and issued.  Therefore, absent any direct evidence of his personal participation in ground combat with enemy forces, or any indication that he was recommended for, or awarded the CIB by proper authorities while serving on active duty, the regulatory burden of proof necessary to support award of the CIB has not been satisfied in this case.  

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 2 September 1973, the date of his separation.  Therefore, the time for him to file a request for correction of any error or injustice related to award of the CIB expired on 1 September 1976.  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.

6.  The evidence of record does show that based on his service and campaign participation in the RVN, the applicant is entitled to the RVN Gallantry Cross 
with Palm Unit Citation and 3 bronze service stars with his Vietnam Service Medal.  The omission of these awards from his separation document is an administrative matter that does not require Board action.  Therefore, his 
records will be corrected 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

__X ___  _X __  __X __  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice related to award of the Combat Infantryman Badge.  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 by showing his entitlement to the Republic of Vietnam Gallantry Cross with Palm Unit Citation and 3 bronze service stars with his Vietnam Service Medal; and by providing him a correction to his separation document that includes these changes.  




_____X  ______
          CHAIRPERSON




INDEX

CASE ID
AR20060010907
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/19
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1973/09/02
DISCHARGE AUTHORITY
AR635-100 . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
107
2.

3.

4.

5.

6.