IN THE CASE OF:	  

		BOARD DATE:	  11 September 2008

		DOCKET NUMBER:  AR20080005646 


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), and all awards to which he is entitled.   

2.  The applicant states, in effect, he would like his record to reflect the CIB and all other awards to which he is justly due. 

3.  The applicant provides his 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 of the United States and entered active duty on 22 September 1969.  His Enlisted Qualification Record (DA Form 20) shows he was initially trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman) on 
13 February 1970, and he was later reclassified into MOS 13A (Field Artillery) on 
22 March 1970.  He was finally reclassified into MOS 76Y (Supply Sergeant) on 18 January 1971.  

3.  Item 31 (Foreign Service) of the applicant's DA Form 20 shows he served in the Republic of Vietnam (RVN) from 11 October 1970 through 20 June 1971, and Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Howitzer Battery, 3rd Squadron, 11th Armor Cavalry Regiment, performing duties in MOS 76Y as a supply clerk, from 16 October 1970 through 22 February 1971; and that he was assigned to Headquarters and Headquarters Battery (HHB), 5th Battalion, 2nd Artillery Regiment, performing duties in MOS 76Y as a supply sergeant, from 23 February 1971 through 20 June 1971.  

4.  Item 38 of the applicant's DA Form 20 also confirms that he received "Excellent" conduct and efficiency ratings at all of his active duty assignments, and his record is void of any derogatory information or a unit commander disqualification that would have precluded him from receiving the Army Good Conduct Medal (AGCM).  

5.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not include the CIB; however, it does show he earned the following awards during his active duty tenure:  National Defense Service Medal (NDSM); Army Commendation Medal (ARCOM); Vietnam Service Medal (VSM); RVN Campaign Medal with 60 Device; Expert Marksmanship Qualification Badge with Rifle
(M-16) and Machinegun Bars; and Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar.  Item 48 (Date of Audit) shows he last audited this record on 23 April 1971.  

6.  The applicant's record is void of any documents or orders that indicate the applicant was ever recommended for or awarded the CIB by proper authority while serving in the RVN.  


7.  On 20 June 1971, the applicant was honorably released from active duty (REFRAD) after completing 1 year, 8 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 shows he earned the NDSM, VSM, RVNCM, and ARCOM.  The CIB is not included in the list of awards contained in Item 24, and he authenticated this document with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his separation.  

8.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-13 contains guidance on the VSM and states, in pertinent part, that a bronze service star is authorized for each RVN campaign a member is credited with participating in.  Table B-1 contains a list of campaigns and shows that during the applicant's tenure of assignment, participation credit was granted for the Vietnam Counteroffensive Phase VII and Consolidation I campaigns.  

9.  Chapter 4 of the awards regulation prescribes the policy for award of the 
AGCM.  It states, in pertinent part, that the AGCM is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years, except in those cases when the period for the first award ends with the termination of a period of Federal military service, in which case a period of more than 1 year is a qualifying period.  Although there is no automatic entitlement to the AGCM, disqualification must be justified.  

10.  Chapter 8 contains guidance on award of combat and special skill badges.  Paragraph 8-6 contains guidance on award of 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; that he served 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.  

11.  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 units (5th Battalion, 2nd Artillery) received the RVN Gallantry Cross with Palm Unit Citation and RVN Civil Actions Honor Medal First Class Unit Citation.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to awards that were not included on his DD Form 214 was carefully considered and found to have merit.  The evidence of record confirms that he received "Excellent" conduct and efficiency ratings at all of his active duty assignments.  Further, the record is void 
of a unit commander disqualification that would have precluded him from receiving the AGCM.  As a result, it would be appropriate to award the applicant the first award of the AGCM, for his qualifying period of honorable active duty service from 22 September 1969 through 20 June 1971.  

2.  The record also shows 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, and 2 bronze service stars with his VSM.  Therefore, it would also be appropriate to add these awards to his record and separation document at this time.  

3.  The record also shows that the applicant earned the Expert Marksmanship Qualification Badge with Rifle (M-16) and Machinegun Bars, and the Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar, which were not included in the list of awards contained on his DD form 214.  Therefore, it would be appropriate to add them to his separation document at this time. 

4.  The applicant's contention that he should be awarded the CIB was also carefully considered.  However, there is insufficient evidence to support this claim.  By regulation, in order to support award of the CIB there must be evidence that the member held and served in an infantry MOS, in a qualifying infantry unit, and was present and participated with the unit while it was actively engaged in ground combat with the enemy.  

5.  In this case, the record shows the applicant held and served in a MOS 76Y and that he was assigned to non-infantry units during his RVN tour.  Further, his record is void of any orders or other documents that show he was ever recommended for or awarded the CIB by proper authority while serving in the RVN.  Therefore, the regulatory burden of proof necessary to support award of the CIB has not been satisfied in this case.  


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 awarding him the Army Good Conduct Medal for his qualifying period of honorable active duty service from 22 September 1969 through 20 June 1971; by showing his entitlement to the Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, 2 bronze service stars with his Vietnam Service Medal, Expert Marksmanship Qualification Badge with Rifle (M-16) and Machinegun Bars, and the Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar; and by providing him a correction to his separation document that includes 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 Combat Infantryman Badge.  




      _______ 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)                                         AR20080005646



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ABCMR Record of Proceedings (cont)                                         AR20080005646



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