RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 July 2007
      DOCKET NUMBER:  AR20070001362


      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. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Ms. Jeanette R. McCants           |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Mr. Jeffrey C. Redmann            |     |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, that he be awarded the Combat
Infantryman Badge.

2.  The applicant states, in effect, that he believes there was a
clerical error and he should have been awarded the Combat Infantryman
Badge and that it should have been added to his DD Form 214, Armed Forces
of the United States, Report of Transfer or Discharge.

3.  In support of his request, the applicant provides a copy of his DD Form
214 and a copy of his DA Form 20, Enlisted Qualification Record.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel provides a two and a half page brief supporting the applicant's
request for award of the Combat Infantryman Badge.  In this brief, the
applicant's counsel "urges the Board to apply the benefit of the doubt
theory to not hold the absence of detail from records that are by routine
produced by an infantry battalion staff, against this veteran.  This
company was at the mercy (infantry parlance) of a military police battalion
staff for what orders it did obtain.  It is indeed far more likely than not
that this PTR [petitioner] was in infantry operations in combat for most of
his tour, and likely was placed on several commanders' submission list to
that battalion for the award of the CIBs [Combat Infantryman Badges] to
their own infantry.  It is an established fact the routine 'records
keeping' in combat is difficult.  A separate company's records in combat
are likely never cut or lost in the fog of war.  Assigned to 11B2O and
doing infantry missions, such as guarding the big ammo dumps in II Corps
tactical zone would and certainly should be enough to make him eligible for
the award of the CIB."

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 31 October 1967.  The application submitted in
this case is dated 18 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
limitation 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 records show that he was inducted into the Army of
the United States on 22 January 1966.  He completed basic combat training
at Fort Jackson, South Carolina, and his advanced individual training at
Fort Dix, New Jersey.  After completing all required training, he was
awarded the military occupational specialty (MOS), 11B (Light Weapons
Infantryman).

4.  The applicant served in Vietnam from 9 November 1966 through 31
October 1967, with Company C, 54th Infantry, 97th Military Police
Battalion.

5.  The applicant was honorably released from active duty on 31 October
1967, under the provisions of Army Regulation (AR) 635-200, early release
of overseas returnee.  He was separated in the rank and pay grade of
Specialist Four, E-4.  On the date he was released from active duty, he had
completed 1 year, 9 months, and 9 days active military service, with no
time lost.

6.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and
Campaign Ribbons Awarded or Authorized), of the applicant's DD Form 214,
shows he was awarded:  the Good Conduct Medal; the Vietnam Service Medal;
the Republic of Vietnam Campaign Medal; the Expert Marksmanship
Qualification Badge, with Rifle Bar [M-14 Rifle]; and one overseas
service bar.  The Combat Infantryman Badge is not shown on his DD
Form 214.

7.  There is no entry in Item 41 (Awards and Decorations), of the DA Form
20, showing the applicant was awarded the Combat Infantryman Badge.

8.  There are no orders in the applicant's military personnel records
awarding him the Combat Infantryman Badge.

9.  While in Vietnam, the applicant performed the duties of an assistant
machine gunner and an automatic rifleman – both duty titles related to the
infantry MOS, 11B.

10.  There is no evidence, and the applicant provided none, to show that he
served in active ground combat while assigned to the 54th Infantry, a
company subordinate to a military police battalion.

11.  Applicant's counsel describes the unit to which he was assigned, the
54th Infantry, as a separate infantry company which was garrisoned with the
90th Military Police Battalion [actually, the 97th Military Police
Battalion].  The unit, counsel states, was unique, separate, and different
from the military police battalion to which it was permanently attached.
The company was assigned all sorts of guard and security missions and
sometimes attached to infantry or cavalry, all the while being housed and
served by the military police battalion.

12.  The applicant's DD Form 214 shows entitlement to the Vietnam Service
Medal; however, it does not show the bronze service stars to which the
applicant is entitled for his campaign participation.

13.  While in Vietnam, the applicant participated in the following two
campaigns of the Vietnam War:  the Vietnam Counteroffensive, Phase II,
which extended from 1 July 1966 through 31 May 1967; and the Vietnam
Counteroffensive, Phase III, which extended from 1 June 1967 through 29
January 1968.

14.  AR 600-8-22, in pertinent part, authorizes award of a bronze service
star, based on qualifying service, for each campaign listed in its Appendix
B and states that authorized bronze service stars will be worn on the
appropriate service medal, in this case, the Vietnam Service Medal.

15.  Department of the Army (DA) Pamphlet 672-3, Unit Citation and
Campaign Participation Credit Register, dated 29 January 1988, which
lists unit awards received by units serving in Vietnam, shows that the
unit the applicant was assigned to was awarded the Meritorious Unit
Commendation, for the period 1 May 1967 through 30 April 1968, by
Department of the Army General Order (DAGO) Number 55, dated 1968.  This
unit award is not shown on the applicant's DD Form 214.

16.  DA Pamphlet 672-3 also shows that the applicant's unit, a subordinate
unit of the United States Army, Vietnam, was awarded the Republic
of Vietnam Gallantry Cross, with Palm, Unit Citation, for the period 20
July 1965 through 28 March 1973, by DAGO Number 8, dated 1974.  This unit
award is also not shown on the applicant's DD Form 214.

17.  AR 600-8-22 provides, in pertinent part, that the Combat Infantryman
Badge 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 assigned or attached to an infantry unit of brigade,
regimental or smaller size.
The Awards Branch of the Total Army Personnel Command [now the Human
Resources Command] has advised, in similar cases, that during the Vietnam
era the Combat Infantryman Badge was awarded only to enlisted individuals
who held and served in MOS 11B, 11C, 11F, 11G, or 11H.

18.  AR 670-1, in effect at the time, governed the requirements for the
overseas service bar.  In pertinent part, it provided that a bar is
authorized for wear for each period of active Federal service as a member
of the U.S. Army outside of the continental limits of the United States.
One overseas service bar is authorized for each six-month period served
in the Republic of Vietnam.  To calculate the entitlement, both the month
of arrival and month of departure are counted as a whole month no matter
the number of days in that month that were spent in the hostile fire
zone.

19.  AR 670-1, chapter 29, prescribes policy and guidance for wear of U.S.
and foreign unit awards.  This regulation states that a Soldier may wear
the unit award permanently if the individual was assigned to, and present
for duty with the unit any time during the period cited; or was attached by
competent orders to, and present for duty with the unit during the entire
period, or for at least thirty consecutive days of the period cited.

DISCUSSION AND CONCLUSIONS:

1.  To be entitled to award of the Combat Infantryman Badge, the evidence
must show that an applicant held and served in an infantry MOS while
assigned or attached to an infantry unit of brigade, regimental or smaller
size, and must have served in active ground combat while assigned or
attached to this infantry unit.

2.  The applicant held and his enlisted qualification records show, he was
assigned to positions related to an infantry MOS in a company-sized
infantry unit in Vietnam; however, there is insufficient evidence to show
he served in active ground combat while assigned or attached to this
infantry unit.

3.  The applicant served in two campaigns while he served in Vietnam.  He
is therefore entitled to award of the Vietnam Service Medal, with two
bronze service stars, as opposed to the Vietnam Service Medal.

4.  The applicant served in a unit, which was awarded the Meritorious Unit
Commendation and the Republic of Vietnam Gallantry Cross, with Palm, Unit
Citation, while he was a member of the unit.  These unit awards are not
shown on his DD Form 214.  He is entitled to these unit awards and to have
them added to his DD Form 214.

5.  The applicant served in Vietnam from 27 March 1967 through 5 February
1969.  Since both the month of arrival and the month of departure are
counted in determining the number of overseas service stripes to award, the
applicant is therefore entitled to award of two overseas service bars and
to have these bars added to his DD Form 214.

6.  Evidence shows that the applicant’s records contain administrative
error which does 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.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 October 1967; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 30 October 1970.  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

___JM___  __JCR__  ___TMR _  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 by:

      a.  deleting the Vietnam Service Medal and the overseas service bar
from the applicant's DD Form 214;

      b.  awarding the applicant the Vietnam Service Medal, with two bronze
service stars, and two overseas service bars, and adding these awards to
the applicant's DD Form 214; and

      c.  awarding the applicant the Meritorious Unit Commendation and the
Republic of Vietnam Gallantry Cross, with Palm, Unit Citation, and adding
these unit awards to his DD Form 214.




                                  _____Jeanette McCants__________
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20070001362                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070731                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107.0000                                |
|2.                      |107.0111                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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