IN THE CASE OF:	  

	BOARD DATE:	  03 June 2008

	DOCKET NUMBER:  AR20080003268 


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 that he be awarded the Combat Infantryman Badge (CIB). 

2.  The applicant states, in effect, that he served in the recon platoon of Company E, 5th Battalion, 46th Infantry Regiment, 198th Infantry Brigade for 10 months, of which 9 months was in combat and he never received a CIB.  He goes on to state that he saw many of his fellow Soldiers killed and wounded and he needs the award of the CIB to receive disability for his post-traumatic stress disorder (PTSD).  He also states that he deserves the award of the CIB because he fought and was constantly exposed to danger in Vietnam.      

3.  The applicant provides a copy of his DD Form 214, and his statement in support of his claim for PTSD (VA Form 21-4138). 

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 was born on 5 October 1947 and was inducted in Salt Lake City, Utah on 3 September 1969.  He completed his training as a light weapons infantryman at Fort Lewis, Washington and was transferred to Vietnam on 7 February 1970.

3.  The applicant was assigned to Company E, 5th Battalion, 46th Infantry Regiment, 198th Infantry Brigade, 23rd Infantry Division initially as a rifleman and then as a scout observer.  He was advanced to the pay grade of E-4 on 1 August 1970 and to the pay grade of E-5 on 5 November 1970.   

4.  He departed Vietnam on 22 December 1970 and was transferred to Fort Benning, Georgia, where he remained until he was honorably released from active duty (REFRAD) on 1 September 1971.  He had served 1 year, 11 months and 29 days of total active service and his DD Form 214 issued at the time of his REFRAD shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal with two bronze service stars, the Republic of Vietnam Campaign Medal with Device (1960), the Army Commendation Medal with one oak leaf cluster, and the Good Conduct Medal.

5.  A review of the applicant’s DA Form 20 (Enlisted Qualification Record) shows in item 41 (Awards and Decorations) that the applicant was awarded the CIB in Special Orders Number 110, issued by HQ AMCAL DIV 1970.  However, that entry was lined through on the form to indicate that it was not valid.  A review of the available record failed to produce an order awarding him the CIB or any evidence to show that he engaged the enemy in ground combat while assigned to his infantry company in Vietnam.

6.  A search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System (ADCARS), a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era contains an order awarding the applicant the Bronze Star Medal (BSM) for meritorious service during the period of February 1970 and January 1971.  However, that award was not included on his DD Form 214 at the time of his REFRAD.    



7.  Army Regulation 600-8-22 also provides, in pertinent part, that the Combat Infantryman Badge is awarded to infantry officers and enlisted Soldiers 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.  Battle or campaign participation credit alone is not sufficient; the unit must have been in active ground combat with the enemy during the period.  A recipient must be personally present and under hostile fire while serving in an assigned infantry or special forces primary duty, in a unit actively engaged in ground combat with the enemy.  To maintain the prestige, uniqueness, and traditional value of the Combat Infantryman Badge, the criteria for award has changed little over the years.
   
8.  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, at the time of the applicant’s assignment to the 5th Battalion, 46th Infantry, the unit was cited for award of the Republic of Vietnam Gallantry Cross with Palm (RVNGC w/Palm) Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant’s contention that he is entitled to award of the CIB is not in doubt, there is no evidence in the applicant’s military records, and the applicant has not provided sufficient evidence to show that he actively engaged the enemy in combat in Vietnam. 

2.  The lack of sufficient evidence coupled with the passage of time (30+ years) makes it difficult at best to establish if the applicant met the criteria for award of the CIB.  Therefore, in the absence of such evidence, it must be presumed that what the Army did at the time was correct.  Accordingly, there appears to be no basis to award him the CIB at this time.  

3.  However, the evidence of record does establish that he was awarded the BSM and that he is entitled to the award of the RVNGC w/Palm Unit Citation.  Accordingly, it would be in the interest of justice to award him the RVNGC w/Palm Unit Citation and to add his award of the BSM to his records at this time. 

4.  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 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned by awarding him the RVNGC w/Palm Unit Citation and showing his award of the BSM on his records as well.

3.  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 the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______________________
      	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)                                         AR20080003268



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ABCMR Record of Proceedings (cont)                                         AR20080003268



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