RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 November 2007
      DOCKET NUMBER:  AR20070006938


      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:

|     |Mr. Eric N. Andersen              |     |Chairperson          |
|     |Mr. Donald L. Lewy                |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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 served in combat in the
Republic of Vietnam (RVN) and was never awarded the CIB.

3.  The applicant provides the following documents in support of his
application:  Separation Document (DD Form 214); Amendment to Certificate
of Birth; Name Change Court Order; and Social Security Account Number
(SSAN) Card.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that he enlisted in the Regular Army and
entered active duty on 14 February 1969.  His Enlisted Qualification Record

(DA Form 20) shows he was trained in and awarded military occupational
specialty (MOS) 11B (Light Weapons Infantryman) on 5 December 1969, and
that he served in the RVN from 29 April through 7 September 1970.

3.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20
shows he was promoted to private first class (PFC) on 5 December 1969, and
that this is the highest rank he held while serving on active duty.  It
also shows that he was reduced to private/E-1 (PV1) on 20 March 1970, and
reacquired the rank of PFC on 19 May 1970.  Item 41 (Awards and
Decorations) of the applicant's
DA Form 20 shows that during his active duty tenure, he earned the National
Defense Service Medal and Vietnam Service Medal, and the applicant last
audited the DA Form 20 on 17 May 1970.

4.  The applicant's record also confirms that he was absent without leave
(AWOL) for 44 days from 2 February through 18 March 1970 and that he was in
confinement from 30 March through 29 April 1970.

5.  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 by proper authority while serving on active duty.
It also contains no documents verifying his personal participation in
ground combat while serving in the RVN.

6.  On 9 September 1970, the applicant was separated with a general, under
honorable conditions discharge, under the provisions of Army Regulation
635-212, by reason of unsuitability, after completing a total of 1 year, 4
months, and 12 days of credible active military service and accruing 74
days of time lost due to AWOL and confinement.

7.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards
policy.  Chapter 8 contains guidance on the CIB.  It states, in pertinent
part, that in order to support award of the CIB there must be evidence that
the member held and served in an infantry MOS in an infantry unit of
brigade, regimental or smaller size, and that he was present and
participated with his qualifying infantry unit while it was engaged in
active ground combat with enemy forces.  Service in a combat zone alone
does not qualify a member for the CIB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of entitlement to the CIB based on his service in
the RVN was carefully considered.  However, by regulation, in addition to
holding and serving in an infantry MOS in a qualifying infantry unit, there
must be evidence that the member was present and participated with his
qualifying infantry unit while it was engaged in active ground combat with
enemy forces.  Service in a combat zone alone is not a sufficient basis to
support award of the CIB.

2.  Although the evidence of record shows the applicant held an infantry
MOS and served in a qualifying infantry unit in the RVN, there is no
evidence confirming his presence and participation with his qualifying
infantry unit while it was engaged in active ground combat with enemy
forces.

3.  Further, the applicant's record 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.  Therefore, absent any
evidence confirming his personal participation in active ground combat, the
regulatory burden of proof necessary to support award of the CIB has not
been satisfied in this case.

4.  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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__ENA __  __DLL  __  __RMN _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  _____Eric N. Andersen ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070006938                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/11/20                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1970/09/09                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Char&Behav Disorder                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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