IN THE CASE OF:	  

	BOARD DATE:	  19 June 2008

	DOCKET NUMBER:  AR20080005009 


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 (RVN) in an infantry military occupational specialty (MOS), and now requests to be awarded the CIB.   

3.  The applicant provides his Enlisted Qualification Record (DA Form 20) and separation document (DD Form 214) 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 record shows that he was inducted into the Army and entered active duty on 7 December 1967, and that he was trained in and awarded MOS 11C (Infantry Indirect Fire Crewman).  

3.  The applicant's DA Form 20 shows he served in the RVN from 27 May 1968 through 22 May 1969.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company B, 1st Battalion, 121st Infantry Regiment, performing duties in MOS 11C as a gunner.

3.  Item 41 (Awards and Decorations) of the applicant’s DA Form 20 shows that during his active duty service, he earned the National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), RVN Campaign Medal (RVNCM), Army Commendation Medal (ARCOM), and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  Item 41 does not include the CIB, and Item 48 (Date of Audit) shows the applicant last audited the DA Form 20 on 26 November 1969.  

4.  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. 

5.  On 5 December 1969, the applicant was honorably released from active duty after completing 1 year, 11 months, and 29 days 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 following awards:  NDSM; ARCOM; VSM; RVNCM; 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. 

6.  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 RVN 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 the applicant 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 29 November 1969, more than 5 months after he departed from the RVN, and just a week 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 RVN and who faced similar circumstances to grant the requested relief.  

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

___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)                                         AR20080005009



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ABCMR Record of Proceedings (cont)                                         AR20080005009



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