RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 July 2007
      DOCKET NUMBER:  AR20070000766


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Ms. Susan A. Powers               |     |Member               |
|     |Mr. Edward E. 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, in effect, award of a combat badge.

2.  The applicant states, in effect, he served in combat and should have
received a combat medal.

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
which occurred on 13 August 1969, the date of his separation.  The
application submitted in this case is dated 4 January 2007.

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 military records are not available to the Board.  This
case is being considered using reconstructed records, which primarily
consist of the applicant's separation document (DD Form 214) and various
documents in the National Personnel Records Center (NPRC) file provided.

4.  The applicant's DD Form 214 shows he was inducted in to the Army and
entered active duty on 7 December 1967.  He was trained in and awarded
military occupational specialty (MOS) 11B (Infantryman), and he held the
rank of private first class (PFC), which he had attained on 14 February
1969, on the date of his separation.

5.  The DD Form 214 also shows the applicant completed 1 year and 2 days of
overseas service, which would have established his RVN service dates as
approximately 6 August 1968 through 12 August 1969.  It also shows his last
assignment prior to separation was the Americal Division, RVN.

6.  The applicant's DD Form 214 confirms the applicant was honorably
separated on 13 August 1969, after completing a total of 1 year, 7 months
and 2 days of creditable active military service and accruing 34 days of
time lost.  Item 24 (Decorations, Medals, Badges, Commendations, Citations
and Campaign Ribbons Awarded or Authorized) shows he earned the following
awards during his active duty tenure:  National Defense Service Medal;
Vietnam Service Medal; RVN Campaign Medal with 60 Device; and 2 Overseas
Bars.  No combat badge is included in the list of awards contained in Item
24 and the applicant authenticated the DD Form 214 with his signature in
Item 32 (Signature of Person Being Transferred or Discharged) on the date
of his separation.

7.  There are no documents in the NPRC file that indicate the applicant was
ever recommended for or awarded the Combat Infantryman Badge (CIB), or any
other combat badge, by proper authority while serving on active duty.

8.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards
policy.  Paragraph 2-13 contains guidance on the Vietnam Service Medal.  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 and
shows that during the applicant's tenure of assignment in the RVN,
participating credit was granted for the Vietnam Counteroffensive Phase V,
Vietnam Counteroffensive Phase VI, TET 69 Counteroffensive, and Vietnam
Summer-Fall 1969 campaigns.

9.  Chapter 8 contains the policies and procedures for the award of Badges
and Tabs of United States Origin and it states that combat and special
skill badges are awarded to denote proficiency in performance of duties
under hazardous conditions and circumstances of extraordinary hardship as
well as special qualifications and successful completion of prescribed
courses of training.

10.  Section II of chapter 8 of the awards regulation contains guidance on
combat badges.  Paragraph 8-6 contains guidance on the CIB.  It states that
there are three basic requirements for the CIB.  They are that the member
must hold and serve in an infantry MOS; they must be assigned to an
infantry unit of brigade, regimental or smaller size, and they must have
been personally present and participated with their qualifying infantry
unit while it was actively engaged in ground combat with enemy forces.  The
regulation stipulates that service in combat alone does not qualify an
individual for the CIB.

11.  Department of the Army General Order Number 8, dated in 1974,
authorized the award of the Republic of Vietnam 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 claim of entitlement to a combat badge was carefully
considered.  However, by regulation, in order to support award of the CIB,
which is the only combat badge the applicant would have been eligible for
based on his RVN combat service, there must be evidence not only that a
member held and served in an infantry MOS, but also that he was assigned to
an infantry unit of brigade, regimental or smaller size, and that he was
personally present and participated with his qualifying infantry unit while
it was engaged in active ground combat with enemy forces.

2.  Although the applicant held an infantry MOS, absent any evidence
confirming he was assigned to a qualifying infantry unit of brigade,
regimental or smaller size, and/or of his personal presence and
participation in active ground combat with his qualifying infantry unit,
the regulatory burden of proof necessary to support award of the CIB has
not been satisfied in this case.

3.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

4.  The record confirms the applicant should have discovered the alleged
error or injustice now under consideration related to award of the CIB on
13 August 1969, the date of his separation.  Therefore, the time for him to
file a request for correction of any error or injustice expired on 12
August 1972.  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 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 4 bronze service stars with his Vietnam Service
Medal.  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 by
the Board in paragraph 3 of the BOARD DETERMINATION/RECOMMENDATION section
below.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__KAN__  __SAP  __  __EEM__  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 a combat
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 4 bronze service stars with his
Vietnam Service Medal; and by providing him a correction to his separation
document that includes these awards.




                                  _____Kathleen A. Newman_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070000766                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/07/10                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1969/08/13                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |OS Rtn                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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