IN THE CASE OF:	  

		BOARD DATE:	  30 September 2008

		DOCKET NUMBER:  AR20080010275 


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, reconsideration of his earlier petition to be awarded the Bronze Star Medal (BSM) and Combat Infantryman Badge (CIB); and that his record be corrected to show his rank as sergeant (SGT).

2.  The applicant states, in effect, that he is providing a certified copy of a BSM certificate that confirms he received this award while serving in the Republic of Vietnam (RVN), and is requesting to be awarded the CIB based on his qualifying infantry combat service in the RVN.  He further states that the orders returning him to the United States incorrectly list his rank as private first class (PFC) in the standard name line, which is not possible since he had already been promoted to specialist four (SP4) and SGT, and he would like his record to reflect his rank as SGT.  

3.  The applicant provides the following documents in support of his application  Self-Authored Statement; Statement [(in Support of Claim) correction taped over](VA Form 21-4138), dated 25 June 2008; BSM Certificate with Citation; Headquarters and Headquarters Company (HHC), 3rd Brigade, 101st Airborne Division (Airmobile), Unit Orders Number 84, dated 6 October 1968; HHC, 3rd Brigade, Unit Order Number 9, dated 7 November 1967; Headquarters, 101st Airborne Division, Special Orders Number 145, dated 24 May 1968; Headquarters, 101st Airborne Division, Special Orders Number 315, dated
10 November 1968; and DD Form 149 (Application for Correction of Military Record), dated 10 October 2007.


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070015387, on 28 February 2008.

2.  During its original review of the case, the Board found no evidence confirming the applicant's active ground combat with a qualifying infantry unit while serving in the RVN and as a result determined there was insufficient evidence to support award of the CIB.  It further determined that the highest rank the applicant held while serving on active duty was SP4 and as a result, concluded a correction to his rank was not appropriate.  The Board also concluded there were no BSM orders in the record or on the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch, United States Army Human Resources Command (HRC) and as a result, there was no evidence to confirm he was awarded the BSM.  Therefore, the Board advised the applicant of his option to request the BSM under the provisions of Title 10 of the United States Code, Section 1130.  

3.  The applicant's records show he was initially inducted into the Army of the United States (AUS) and entered active duty on 15 March 1967.  He was trained in and awarded MOS 11B (Light Weapons Infantryman).  His Enlisted Qualification Record (DA Form 20) shows he served in the RVN from 
5 December 1967 through 4 December 1968.  

4.  Item 33 (Appointments and Reductions) shows the applicant was promoted to private (PV2)/E-2 on 15 July 1967; and subsequently promoted to private first class (PFC)/E-3 on 15 November 1967, and his separation document (DD form 214) confirms he was promoted to SP4 on 19 March 1968, and that this is the highest rank he attained through promotion while serving on active duty.

5.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows that during his RVN tour, he was assigned to HHC, 3rd Brigade, 101st Airborne Division, performing duties as a light vehicle driver.  The list of awards contained in Item 41 (Awards and Decorations) does not include the BSM or CIB.  

6.  The applicant's record contains Headquarters, United States Army Personnel Center, Oakland, California, Special Orders Number 338, dated 3 December 1968, which directed his relief from active duty (REFRAD) and transfer to the United States Army Reserve (USAR) on the date immediately following his REFRAD.  The standard name line of these orders listed the applicant's rank as SP4, and the orders authorized his transfer into the USAR in the Reserve grade 
of SP4.  His record also contains a Notification to State Adjutant General Release from Active Duty of Obligated Reservist (DA Form 2376), dated
3 December 1968, which shows in Item 2 (Grade, Last Name, First Name, Middle Initial and Service Number/Social Security Account Number) that he held the rank of SP4.

7.  On 3 December 1968, the applicant completed a Serviceman's Statement Concerning Application for Compensation from the Veterans Administration (now known as the Department of Veterans Affairs) (DA Form 664).  In this document, the applicant listed his rank as SP4 in the Name, Grade, and Service No. section.  
8.  On 3 December 1868, the applicant was honorably released from active duty (REFRAD) and transferred to the United States Army Reserve (USAR) Control Group (Annual Training).  Item 5a and Item 5b of the DD Form 214 he was issued at the time confirms he held the rank and pay grade of SP4/E-4.  The DD Form 214 also shows he completed a total of 1 year, 8 months, 19 days of active military service.  The list of awards contained in Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) does not include the BSM or CIB, 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. 

9.  The applicant's record shows that he continued to serve in the USAR until 
1 March 1973, at which time he was honorably discharged.  The USAR orders authorizing his discharge list his rank and pay grade as SP4/E-4.  

10.  The applicant provides a copy of a BSM Certificate with Citation, which show he was awarded the BSM for his meritorious achievement in the RVN during the period 1 January 1968 through 31 August 1968.  He also provides HHC, 3rd Brigade, 101st Airborne Division Unit Orders Number 84, dated 6 October 1968, which show he was temporarily appointed an Acting Sergeant.

11.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 3-13 of the awards regulation outlines the criteria for the award of the BSM.  The regulation stipulates that this award must be approved by the proper award approval authority and announced in official orders.  

12.  Chapter 8 of the Military Awards regulation 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 active ground combat with enemy forces.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of entitlement to the BSM and the documents he provided in support of his claim were carefully considered.  However, there are no BSM orders on file in his record, or maintained on ADCARS.  As a result, absent any evidence that he was awarded the BSM by proper authority and this award was announced in official orders, there is still an insufficient evidentiary basis to support award of the BSM in this case.  

2.  The applicant’s claim of entitlement to the CIB was also carefully considered.  However, by regulation, in order to support award of the CIB, there must not only be evidence that the member held an infantry MOS and served in a qualifying infantry unit, there must also be evidence that he was present and participated with his qualifying infantry unit while it was engaged in active ground combat with enemy forces.  Service in a combat environment alone does not satisfy this requirement.  The evidence of record in this case shows that although the applicant held an infantry MOS, while serving in the RVN he was assigned to a headquarters company, not a traditional line company, and that he performed driver duties.  As a result, absent any evidence that he was awarded the CIB by proper authority while serving in the RVN, or of his personal participation in combat with his qualifying infantry unit, the regulatory burden of proof necessary to support award of the CIB still has not been met in this case. 

3.  By regulation, the rank and pay grade held on the date of REFRAD will be entered on the DD Form 214.  Although there is evidence the applicant served as an Acting SGT, his record confirms the highest rank he was promoted to and held while serving on active duty was SP4.  As a result, absent evidence that he was ever officially promoted to SGT while serving on active duty, there is an insufficient evidentiary basis to grant this portion of the requested relief.  Further, the applicant's record contains USAR discharge orders subsequently issued to the applicant in 1973, which also confirm his rank as SP4.  

4.  The DD Form 214 issued to the applicant upon his REFRAD lists his rank and pay grade as SP4C/E-4 and does not include the BSM and CIB in the list of awards contained in Item 24.  The applicant authenticated this document with his signature on the date of his separation.  In effect, his signature was his verification that the information contained on the separation document, to include the entries in Item 5a, Item 5b and Item 24, was correct at the time the separation document was prepared and issued.  As a result, there is no apparent error or injustice related to either the rank or awards listed on his separation document.   

5.  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 to amend the decision of the ABCMR set forth in Docket Number AR2007001538728, dated 28 February 2008.



      _________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)                                         AR20080010275



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ABCMR Record of Proceedings (cont)                                         AR20080010275


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