RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  23 August 2007
	DOCKET NUMBER:  AR20070003812 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. Lester Echols

Chairperson

Mr. John T. Meixell

Member

Mr. Richard T. Dunbar

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 his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show the award of the Combat Infantryman Badge (CIB) and any other awards and decorations.

2.  The applicant states, in effect, that he was transferred and discharged from the service in a very short period of time and, as a result, all of the procedures to process an award were cut short.

3.  The applicant provides a copy of his DD Form 214. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 29 June 1970.  The application submitted in this case is dated 5 March 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 military records show that he entered active duty on 11 June 1969.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 11B1O (Light Weapons Infantryman).

4.  He served with Company A, 2nd Battalion, 35th Infantry, 4th Infantry Division in the Republic of Vietnam during the period 16 February 1970 to 29 June 1970.  He was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) St. Louis, Missouri on 29 June 1970.  He had completed 1 year and 19 days of active service.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form  
214 shows the award of the Vietnam Service Medal, Vietnam Campaign Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Marksmanship Qualification Badge with Rifle Bar.  However, it does not show the award of CIB.
6.  The applicant's DA Form 20 (Enlisted Qualification Record), shows that he served in the duty MOS 11B1O (Rifleman), with Company A, 2nd Battalion,  
35th Infantry, 4th Infantry Division during the period of 16 February 1970 to  
29 June 1970.

7.  However, a search on the internet by the ABCMR staff for the applicant's unit to which he was assigned in the Republic of Vietnam was unable to provide evidence to substantiate that the applicant was engaged with enemy forces in combat.

8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the CIB is awarded to infantry officers and to enlisted and warrant officer persons 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 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.  A review of the applicant's records show entitlement to additional awards and decorations not shown on his DD Form 214.

10.  Army Regulation 672-5-1 (Military Awards) provides that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954, and 1 January 1961 through  
14 August 1974, inclusive. 

11.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This document shows that all units assigned in Vietnam from 
8 February 1962 through 28 March 1973 were awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation, based on Department of the Army General Order Number 8, dated 1974.

12.  The applicant's records show that he was awarded the Vietnam Service Medal.  However, his DD Form 214 does not show any bronze service stars indicating campaign credit.

13.  Appendix B of Army Regulation 600-8-22 shows that based on the applicant's dates of service in the Republic of Vietnam, he participated and received campaign credit for the Vietnam Winter-Spring 1970 (1 November  
1969 to 30 April 1970) and DA Sanctuary Counteroffensive (1 May 1970 to  
30 June 1970).  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show the CIB and any other awards and decorations.

2.  The evidence shows the applicant was assigned as a rifleman while assigned to an infantry unit of brigade, regimental, or smaller size.  However, the applicant failed to provide evidence to substantiate that he was engaged with enemy forces in combat.  Therefore, the applicant is not entitled to correction of his records to show the CIB.

3.  Evidence shows the applicant is entitled to the award National Defense Service Medal.  Therefore, he is entitled to correction of his records to show this award.

4.  Evidence shows the applicant is entitled to the award Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, he is entitled to correction of his records to show this foreign unit award.

5.  Evidence of records show the applicant was credited with participating in two campaigns during his service in the Republic of Vietnam.  Therefore, he is entitled to correction of his record to show two bronze service stars to be affixed to the Vietnam Service Medal.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 29 June 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
28 June 1973.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence, it would be in the interest of justice to excuse failure to timely file in this case.

7.  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.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___jtm___  ____le__  ____rtd__  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 the National Defense Service Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and two bronze service stars to be affixed to his Vietnam Service Medal.

4.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.




___________Lester Echols___________
          CHAIRPERSON




INDEX

CASE ID
AR20070003812
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070823
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.