RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2008
	DOCKET NUMBER:  AR20070014380


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 the Combat Infantryman Badge (CIB) and Army Commendation Medal (ARCOM) 1st Oak Leaf Cluster (2nd Award) with “V” (Valor) Device be added to the list of awards contained on his 
separation document (DD Form 214).  

2.  The applicant states, in effect, that the CIB and ARCOM with "V" Device he earned were not included in the list of awards contained on his separation document (DD Form 214).

3.  The applicant provides a copy of his ARCOM Citation and ARCOM 1st Oak Leaf Cluster (2nd Award) Certificate in support of his application.

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 military records show he was inducted into the Army of the United States (AUS) and entered active duty on 5 March 1969.  He completed basic combat training and advanced individual training (AIT) at Fort Jackson, South Carolina.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The Enlisted Qualification Record (DA Form 20) shows he served in the Republic of Vietnam (RVN) from 22 August 1969 to 18 August 1970, and was assigned to Company C, 1st Battalion, 5th Infantry Regiment, performing duties in MOS  11B as a rifleman and grenadier.  Item 41 (Awards and Citations) shows he earned the following awards during his active duty tenure:  National Defense Service Medal (NDSM); Vietnam Service Medal (VSM); Bronze Star Medal (BSM); Overseas Service Bar; RVN Campaign Medal with Device 1960; Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Marksman Marksmanship Qualification Badge with Machinegun Bar.
4.  The applicant’s Military Personnel Records Jacket (MPRJ) contains Headquarters, 3rd AIT Brigade Special Orders Number 122, dated 27 June 1969, which confirms the applicant qualified as a Marksman with the Automatic Rifle on 12 June 1969.  It also contains Headquarters, 25 Infantry Division General Orders (GO) Number 2225, dated 25 February 1969, which awarded the applicant the ARCOM for meritorious service in the RVN during the period 
1 December 1969 to 31 January 1970.  The applicant provides a copy of the corresponding Citation for this award.

5.  The applicant's MPRJ also contains Headquarters, 25 Infantry Division, GO Orders Number 5562, dated 26 May 1970, which awarded the applicant the BSM for his meritorious service in the RVN during the period July 1969 to July 1970; and Headquarters, 1st Armored Division GO Number 25, dated 8 February 1971, which awarded the applicant the Army Good Conduct Medal (AGCM) for his qualifying period of honorable service from 5 March 1969 to 4 March 1971.

6.  The applicant's MPRJ contains no orders, or other documents that indicate he was ever recommended for, or awarded a second award of the ARCOM or that he was ever recommended for or awarded the ARCOM with “V” Device.  

7.  On 4 March 1971, the applicant was honorably released from active duty in the rank of sergeant and transferred to the United States Army Reserve (USAR). The DD Form 214 issued to him at the time shows he completed 2 years of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows he earned the following awards during his tenure on active duty:  NDSM; VSM with 2 bronze service stars; RVN Campaign Medal; BSM; Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) Bar; and Marksman Marksmanship Qualification Badge with Machinegun Bar.

8.  The applicant provides a copy of an ARCOM 1st Oak Leaf Cluster Certificate, which indicates he received this award for heroism in the RVN on 
12 May 1970.

9.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-13 of the awards regulation contains guidance on award of the Vietnam Service Medal.  It states, in pertinent part, that a bronze service star is authorized with this award for each RVN campaign a member is credited with participating in while serving in the RVN.  


10.  Table B-1 of the award regulation contains a list of RVN campaigns.  It shows that during his tenure of assignment in the RVN, the applicant was credited with participating in the Vietnam Summer Fall 1969, Vietnam Winter Spring 1970, Sanctuary Counteroffensive; and Vietnam Counteroffensive campaigns.

11.  Paragraph 3-16 of the awards regulation provides that the ARCOM may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguished himself or herself by heroism, meritorious achievement or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  An OLC is used to denote second or subsequent awards of this medal.

12.  Chapter 8 of the awards regulation contains guidance on award of the CIB.  It states, in pertinent part, that there are basically three requirements for award of the CIB.  The requirements are that the member hold and be serving in an infantry MOS; that the member be serving in an infantry unit of brigade, regimental or smaller size; and that the member be present and participate with his qualifying infantry unit while it is actively engaged in combat with the enemy.

13.  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 (Co C, 1st Battalion, 5th Infantry Regiment) earned the RVN Gallantry Cross with Palm Unit Citation and RVN Civil Actions Honor Medal First Class Unit Citation.

14.  Title 10 of the United States Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the CIB was carefully considered and found to have merit.  The evidence of record confirms the applicant served in an infantry MOS and was assigned to and served with an infantry line company while serving in the RVN.  Further, the record gives no indication that he was performing staff or headquarters type duties, or any duties other than those of a line infantryman during his RVN tour.  His record also confirms he received both the BSM and ARCOM for meritorious service in the RVN.  As a result, absent evidence to the contrary, it is reasonable to presume he was regularly present and participated with his qualifying infantry unit while it was engaged in active ground combat with enemy forces in the RVN.  Therefore, it is concluded that the applicant met satisfied the regulatory criteria necessary to support award of the CIB, and it would be appropriate and serve the interest of equity and justice to award it to him, and to add it to his record and separation document at this time. 

2.  The evidence of record contains orders that awarded the applicant the ARCOM for meritorious service and the AGCM.  As a result, it would also be appropriate to add these awards to his DD Form 214 at this time.  However, the  evidence of record is void of any orders, or other documents that show the applicant was ever recommended for or awarded the ARCOM 1st Oak Leaf Cluster (2nd Award) with “V” Device.  The ARCOM certificate provided by the applicant alone, absent any evidence of record to corroborate the information it contains, is not sufficient to support this award at this late date.  As a result, there is an insufficient evidentiary basis to support granting this portion of the requested relief.  

3.  The record also confirms that based on his service and campaign participation in the RVN, the applicant is entitled to the RVN Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit Citation, Marksman Marksmanship Qualification Badge with Automatic Rifle Bar, and 4 bronze service stars with his VSM.  Thus, it would also be appropriate to add these awards to his record at this time.

4.  The applicant is advised that while the available evidence is insufficient to award him the ARCOM 1st Oak Leaf Cluster with "V" Device, he has not yet exhausted all available avenues in pursuing his claim of entitlement to this award.  By law, he may pursue his claim to the ARCOM 1st Oak Leaf Cluster with "V" Device by submitting a request, with an award recommendation and supporting evidence, through his Member of Congress under the provisions of 
10 USC 1130, an option he may still wish to pursue.  


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ___x ____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  awarding him the Combat Infantryman Badge; 

	b.  amending Item 24 of his DD form 214 by deleting the current list of awards and replacing it with the entry " National Defense Service Medal, Bronze Star Medal, Army Commendation Medal, Army Good Conduct Medal, Vietnam Service Medal with 4 bronze service stars, Republic of Vietnam Campaign Medal with Device 1960; Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Combat Infantryman Badge, Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) Bar, Marksman Marksmanship Qualification Badge with Machinegun and Automatic Rifle Bars"; and 

	c.  issuing him a correction to his DD Form 214 that reflects these changes.  

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the Army Commendation Medal 1st Oak Leaf Cluster with “V” Device.




      ________x______________
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20070014380


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
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