IN THE CASE OF:	  

	BOARD DATE:	  22 July 2008

	DOCKET NUMBER:  AR20080000822 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (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 and Cambodia in an infantry military occupational specialty (MOS).  He further states that he was issued a CIB along with his other medals by his unit's company clerk.  The applicant concludes that he was unaware of the fact that the CIB was omitted from his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) until it was brought to his attention by a clerk when he visited a Veterans Affairs hospital recently.

3.  The applicant provides his DD Form 214 as documentary evidence in support of this 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 record shows that he was inducted into the Army of the United States and entered active duty on 25 March 1969.  He completed basic combat training and advanced individual training.  Upon completion of advanced individual training, he was awarded the MOS 11B (Light Weapons Infantryman).  The highest rank he attained while serving on active duty was the grade of specialist (SP4)/pay grade E-4.  The applicant served a tour of duty in the Republic of Vietnam during the period 2 September 1969 through 1 September 1970.

3.  Item 38 (Record of Assignments) of the applicant's DA Form 20 (Enlisted Qualification Record) shows that during his tour of duty in the Republic of Vietnam, he was assigned to Company C, 3rd Battalion, 8th Infantry Regiment of the 4th Infantry Division, performing duties in MOS 11B as a rifleman.

4.  Item 41 (Awards and Decorations) of the applicant’s DA Form 20 does not include the CIB and Item 48 (Date of Audit) shows the applicant last audited the DA Form 20 on 8 October 1970.

5.  The applicant's Military Personnel Records Jacket (MPRJ) 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. 

6.  The applicant's DD Form 214 shows that on 24 March 1971, he was released from active duty with an honorable characterization of service and transferred to the United States Army Reserve Control Group (Annual Training) after completing 2 years of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued at the time shows he earned the Air Medal, Army Commendation Medal, National Defense Service Medal, Republic of Vietnam Campaign Medal, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  The CIB is not included in the list of awards contained in Item 24 and the applicant authenticated this document with his signature in Item 32 (Signature of Member Being Transferred or Discharged) on the date of his separation. 

7.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Chapter 8 contains guidance on award of combat and special skill badges, and paragraph 8-6 contains guidance on award of the CIB.  It states, in pertinent part, that there are three basic requirements for the CIB.  The member must hold and serve in an infantry MOS; must be assigned to a qualifying infantry unit of brigade, regimental or smaller size; and must have been present and participated with his qualifying infantry unit while it was engaged in active ground combat with enemy forces.  It further stipulates that combat service alone is not a sufficient basis to support award of the CIB.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to the CIB for his service in the Republic of Vietnam was carefully considered.  However, by regulation, in order to support award of the CIB, there must not only be evidence that a member served in an infantry MOS in an infantry unit, but also that he was personally present and participated with the qualifying infantry unit while it was engaged in active ground combat with enemy forces.  

2.  The applicant's MPRJ is void of any orders or other documents indicating that he was ever recommended for or awarded the CIB by proper authority while serving on active duty.  The CIB is not included in the list of awards contained in Item 41 of his DA Form 20, which he last audited on 8 October 1970, one month after he departed from the Republic of Vietnam, and 5 months prior to his separation.  In effect, this audit was his verification that the information contained on the record, to include the list of awards in Item 41, was correct on that date.  

3.  Further, the CIB is also not included in the list of awards contained in Item 24 of his DD Form 214, which he authenticated with his signature on the date of his separation.  In effect, his signature was his verification that the information on the separation document, to include the list of awards, was correct at the time the separation document was prepared and issued.  As a result, although the evidence of record shows the applicant was performing infantry duties in an infantry unit, there is no evidence confirming he was personally present and participating with the unit while it was engaged in active ground combat with enemy forces.  As a result, the regulatory burden of proof necessary to support award of the CIB has not been satisfied in this case.  Therefore, it would not be appropriate or serve the interest of all those who served in the Republic of Vietnam and who faced similar circumstances to grant the requested relief.  

4.  In the absence of evidence to the contrary, administrative regularity is presumed in the applicant's case.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  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.  


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ___X____  __X_____  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.




 _   _______  X ______________
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080000822





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ABCMR Record of Proceedings (cont)                                         AR20080000822



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