RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 May 2007
      DOCKET NUMBER:  AR20060014401


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Eric N. Andersen              |     |Chairperson          |
|     |Mr. Antonio Uribe                 |     |Member               |
|     |Mr. Rodney E. Barber              |     |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 served in military occupational
specialty (MOS) 11B (Infantryman) and actually had CIB orders in his hand
in 1970, while serving in the Republic of Vietnam (RVN).

3.  The applicant provides no additional documentary evidence in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 22 January 1972, the date of his discharge.  The
application submitted in this case is dated 29 September 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 that he enlisted in the Regular Army and
entered active duty on 28 August 1969.  He was trained in, awarded, and
served in MOS 11B (Light Weapons Infantryman), and the highest rank he
attained while serving on active duty was specialist four (SP4).

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows that
he served in the RVN from 10 February 1970 through 23 December 1970.  Item
38 (Record of Assignments) shows that during his RVN tour, he was assigned
to Company B, 4th Battalion, 31st Infantry Regiment, performing duties in
MOS 11B as an assistant machine gunner, from 28 February through 5 May
1970; and to the 171st Aviation Company, performing duties in MOS 67A and
MOS 67N (Helicopter Repairer), from 6 May 1970 through the date of his
departure for Europe on 23 December 1970.

5.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows
that he earned the following awards during his active duty tenure:
National Defense Service Medal (NDSM); Vietnam Service Medal (VSM); RVN
Campaign Medal with 60 Device; Army Commendation Medal (ARCOM);
Sharpshooter Marksmanship Qualification Badge with Rifle Bar; and 1
Overseas Service Bar.  The CIB is not included in the list of authorized
awards contained in Item 41 and the applicant last audited the DA Form 20
on 19 January 1972.

6.  The applicant's Military Personnel Records Jacket (MPRJ) is void of any
orders or other documents indicating that he was ever recommended for or
awarded the CIB by proper authority while serving on active duty.

7.  On 22 January 1972, the applicant was separated with a general, under
honorable conditions discharge (GD), by reason of unsuitability.  The
separation document he was issued at the time shows, in Item 24
(Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons
Awarded or Authorized), that he earned the following awards during his
active duty tenure:  ARCOM; NDSM; VSM; RVN Campaign Medal; Sharpshooter
Marksmanship Qualification Badge with Rifle Bar; and 1 Overseas Service
Bar.  The CIB is not included in the list of authorized awards contained in
Item 24, and the applicant authenticated this document with his signature
in Item 32 (Signature of Person Being Transferred or Discharged) on the
date of his separation.

8.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards
policy.  Paragraph 2-13 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.  Appendix B of this regulation lists the qualifying campaigns
during the Vietnam conflict for which a bronze service is authorized.  It
shows that during the applicant’s tour of duty in Vietnam, he participated
in the Vietnam Winter-Spring 1970, Sanctuary Counteroffensive, and Vietnam
Counteroffensive Phase VII campaigns.

9.  Chapter 8 of the awards regulation contains guidance on the CIB.  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 serving as an infantryman
while assigned or attached to an infantry unit of brigade, regimental or
smaller size, and must have been present and participated with the unit
while it was engaged in active ground combat with enemy forces.

10.  Department of the Army General Order Number 8, dated in 1974,
authorized the award of the RVN Gallantry Cross with Palm Unit Citation to
all personnel assigned to the RVN from 8 February 1962 through 28 March
1973.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was awarded the CIB while serving in
the RVN was carefully considered.  However, the record confirms that during
his RVN tour, the applicant only served with a qualifying infantry unit for
just over two months, and there is no evidence showing that he was present
and participated in active ground combat with this qualifying unit during
the period he was assigned.  The record shows he served the remainder of
his RVN tour in an aviation unit performing duties in an aviation MOS.

2.  The CIB is not included in the list of authorized awards contained in
Item 41 of the applicant's DA Form 20, and he last audited this record on
19 January 1972, well after he completed his RVN tour of duty in 1970.  In
effect, this audit was his verification that the information contained on
the record, to include the list of awards in Item 41, was correct at that
time.

3.  Further, the applicant's MPRJ is void of any orders or other documents
that indicate he was ever recommended for, or awarded the CIB by proper
authority while serving on active duty.  In addition, the CIB is not
included in the list of authorized awards contained in Item 24 of his DD
Form 214, and the applicant authenticated this document with his signature
on the date of his separation.  In effect, his signature was his
verification that the information contained on the DD Form 214, to include
the list of awards contained in Item 24, was correct at the time the
separation document was prepared and issued.

4.  Records show the applicant should have discovered the alleged error or
injustice related to award of the CIB now under consideration on 22 January
1972, the date of his discharge.  Therefore, the time for him to file a
request for correction of any error or injustice expired on 21 January
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.

5.  The evidence of record does show that based on his RVN service and
campaign participation, the applicant is entitled to the RVN Gallantry
Cross
with Palm Unit Citation and 3 bronze service stars with his VSM.  The
omission of these awards from his record and separation document is an
administrative matter that does not require Board action.  Therefore, the
Case Management Support Division (CMSD), St. Louis, Missouri, will
administratively correct his record and separation document as outlined in
paragraph 3 of the
BOARD DETERMINATION/RECOMMENDATION section below.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__ENA __  __AU   __  __REB __  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 to show 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.




                                  _____Eric N. Andersen ___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060014401                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/05/17                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1972/01/22                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Unsuitability                           |
|BOARD DECISION          |DENY with Note                          |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  46   |107.1000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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