RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 May 2007
      DOCKET NUMBER:  AR20060016188


      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. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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, that he advanced through the ranks
from private/E-1 (PV1) through specialist four (SP4), and that he is
entitled to the CIB for being under fire in the Republic of Vietnam (RVN).


3.  The applicant provides a statement from his brother in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 30 August 1966, the date of his release from active duty
(REFRAD). The application submitted in this case is dated 7 November 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 was inducted into the Army and
entered active duty on 4 September 1964.  He was trained in, awarded, and
served in military occupational specialty (MOS) 94B (Cook), and SP4 is the
highest rank he attained while serving on active duty.  His Enlisted
Qualification Record
(DA Form 20) shows he served in the RVN from 16 April 1966 through 26
August 1966.  Item 38 (Record of Assignments) shows that while serving in
the RVN tour, he was assigned to Headquarters and Headquarters Company
(HHC),
4th Battalion, 9th Infantry Regiment, 171st Infantry Brigade, performing
duties in MOS 94B as a cook.  Item 41 (Awards and Decorations) shows he
earned the Vietnam Service Medal (VSM) and National Defense Service Medal
(NDSM) during his active duty tenure.  The CIB is not included in Item 41.


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

5.  On 30 August 1966, the applicant was honorably REFRAD after completing
1 year, 11 months, and 27 days of active military service.  The separation
document (DD Form 214) he was issued at the time shows he earned the NDSM
and VSM.  The CIB is not included in the list of awards contained on the DD
Form 214, and the applicant authenticated this document with his signature
in Item 34 (Signature of Person Being Transferred or Discharged) on the
date of his separation.

6.  The applicant provides a statement from his brother that indicates they
both served in the same unit in the RVN, and that he received the CIB for
being under fire.  No further details on the applicant's brother, such as
MOS and specific duties in the RVN are provided.

7.  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.

8.  Chapter 8 of the awards regulation contains guidance on the CIB.  It
states, in pertinent part, that in order to qualify for the CIB, a member
must meet the following three requirements:  be an infantryman
satisfactorily performing infantry duties; be assigned to an infantry unit
during such time as the unit is engaged in active ground combat; and
actively participate in such ground combat.  Service in a combat zone or
battle credit alone is not sufficient for award of the CIB.  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 CIB was awarded only to enlisted individuals who held
and served in MOS 11B, 11C, 11F, 11G, or 11H.

9.  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 his tenure of
assignment in the RVN, the applicant’s unit (4th Battalion, 9th Infantry
Regiment) received the RVN Gallantry Cross with Palm Unit Citation and RVN
Civil Actions Honor Medal First Class Unit Citation.  It also shows that
during the tenure of the applicant's assignment, participation credit was
granted for the Vietnam Counteroffensive Phase I and Vietnam
Counteroffensive Phase II campaigns.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the CIB based on
being under fire in the RVN and because his brother, who was assigned to
the same unit at the same time, received the CIB was carefully considered.
However, by regulation, in order to support award of the CIB, there must be
evidence that the individual held and served in an infantry MOS while
assigned to an infantry unit of regimental, brigade or smaller size, and
that he was personally present with the qualifying infantry unit while it
was actively engaged in ground combat with hostile forces.

2.  The evidence of record in this case, although it shows the applicant
was assigned to a qualifying infantry unit, confirms he held and served in
MOS 94B as a cook while serving in the RVN.  His record is void of any
orders or other documents showing that he was ever recommended for, or
awarded the CIB by proper authority while serving on active duty, and the
CIB is not included in the list of awards contained in Item 41 of his DA
Form 20.  Further, the CIB is not included in the list of authorized awards
contained on his DD Form 214, which he authenticated with his signature on
the date of his separation.  In effect, his signature on the DD Form 214
was his verification that the information contained on the separation
document, to include the list of awards, was correct at the time the
document was prepared and issued.

3.  Notwithstanding the fact his brother received the CIB, absent any
evidence showing the applicant held and served in an infantry MOS in the
RVN, the regulatory burden of proof necessary to support award of the CIB
has not been satisfied in this case.  The applicant is advised that combat
service under fire alone does not support award of the CIB.

4.  Records show the applicant should have discovered the alleged error or
injustice related to award of the CIB now under consideration on 30 August
1966, the date of his separation.  Therefore, the time for him to file a
request for correction of any error or injustice expired on 29 August 1969.
 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 the applicant's entitlement to the RVN
Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal
First Class Unit Citation, and 2 bronze service stars with his VSM.

6.  The omission of the awards listed in the preceding paragraph is an
administrative matter that does not require Board action.  Therefore, the
Case Management Support Division (CMSD), St. Louis, Missouri, will
administratively correct the record as outlined in paragraph 3 of the BOARD
DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__KLW   _  __PHM  _  __KSJ __  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 his entitlement to the Republic of Vietnam
Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions
Honor Medal First Class Unit Citation, and 2 bronze service stars with his
Vietnam Service Medal.




                                  _____Kenneth L. Wright____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060016188                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/05/10                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1966/08/30                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |OS RTN                                  |
|BOARD DECISION          |DENY with Note                          |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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