IN THE CASE OF:	  

		BOARD DATE:	  16 September 2008

		DOCKET NUMBER:  AR20080006993 


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 his separation document (DD Form 214) does not reflect award of the CIB in Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), and he now requests it be added. 

3.  The applicant provides his 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 he enlisted into the Regular Army and entered active duty on 22 July 1968, and was trained in and awarded MOS 12B 
(Combat Engineer).  

3.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he served in the Republic of Vietnam (RVN) from 19 December 1968 through 3 July 1969.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company C, 1st Battalion, 508th Infantry Regiment, performing duties in MOS 12A as a pioneer.  Item 41 (Awards and Decorations) shows that he earned the following awards during his active duty tenure:  National Defense Service Medal (NDSM); Vietnam Service Medal (VSM); Purple Heart (PH); and Expert Marksmanship Qualification Badge with Rifle and Grenade Bars. 

4.  Item 41 of the applicant's DA Form 20 does not include the CIB, and 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 on active duty.  

5.  On 23 October 1970, the applicant was honorably retired, in the rank of specialist four (SP4), by reason of permanent disability.  The DD Form 214 he was issued at the time shows he completed 2 years, 3 months, and 2 days of active military service.  Item 24 shows he earned the following awards during his active duty tenure:  NDSM; VSM; PH; Expert Marksmanship Qualification Badge with Rifle (M-16) Bar; 2nd Class Gunner Badge with Machinegun Bar; First Class Badge with Hand Grenade Bar; and Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) 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 Person Being Transferred or Discharged) on the date of his separation for retirement.  

6.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Awards and Decorations Computer Assisted Retrieval System (ADCARS), which contains award orders from the Vietnam Era. There are no award orders on file in ADCARS pertaining to the applicant.  

7.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Chapter 8 contains guidance on award of the CIB and states, in pertinent part, that in order to be eligible for the CIB, a member must have held and served in an infantry MOS; they must have served in a qualifying infantry unit of brigade, regimental, or smaller size; and they must have been present and personally participated with a qualifying infantry unit while it was actively engaged in ground combat with enemy forces. 

8.  In similar cases, the Military Awards Branch, Human Resources Command (HRC), has advised that during the Vietnam era the CIB was awarded only to enlisted individuals who held and served in MOSs 11B, 11C, 11F, 11G, or 11H.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he is entitled to the CIB and the supporting evidence he submitted were carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By regulation, in order to support award of the CIB, there must be evidence not only that the member served in combat in a qualifying infantry unit, but also that he held and served in an infantry MOS.  In this case, the evidence of record confirms the applicant served in MOS 12A, an engineer MOS, as evidenced by entries in Item 38 of his DA Form 20.  There is no evidence of record that shows he ever held or served in an infantry MOS during his tenure of assignment in the RVN.  Further, the CIB is not included in the list of awards contained in Item 41 of his DA Form 20 or in the list of awards contained on his DD Form 214, which he authenticated with his signature on the date of his separation.  In effect, his signature serves as his verification that the information contained on the separation document, to include the list of awards, was correct at the time it was prepared and issued.  

3.  In addition, his record 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.  Therefore, absent any evidence that he held and served in an infantry MOS in the RVN, or that he was ever awarded the CIB by proper authority, the regulatory burden of proof necessary to support award of the CIB has not been met in this case, and it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to support granting the requested relief in this case.  

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.  

5.  The applicant and all others concerned should know that 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)                                         AR20080006993



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ABCMR Record of Proceedings (cont)                                         AR20080006993



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