IN THE CASE OF:	  

		BOARD DATE:	  30 October 2008

		DOCKET NUMBER:  AR20080010309 


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 Door Gunner (Rifle) and Helicopter Gunner Badges (sic). 

2.  The applicant states, in effect, they were in the middle of war and he believes the paperwork for the awards in question just did not get done and was not submitted.  

3.  The applicant provides a self-authored statement and 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 and entered active duty on 25 January 1971.  He successfully completed basic combat training and advanced individual training (AIT) at Fort Polk, Louisiana.  Upon completion of AIT he was awarded military occupational specialty (MOS) 11B (Infantryman).  

3.  The applicant’s Enlisted Qualification Record (DA Form 20) shows that he served in the Republic of Vietnam (RVN) from 29 January through 26 September 1972.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to the 129th Attack Helicopter Company, 17th Cavalry Regiment, from 
7 February through 21 March 1972, performing duties in OMS 67A as a door gunner; and to the 7th Assault Helicopter Company, Group Combat, United States Army Pacific (USARPAC), from 24 March through 17 September 1972, performing duties in MOS 11B as a rifleman.  Item 41 (Awards and Decorations) shows that during his active duty tenure, he earned the National Defense Service Medal (NDSM) and Vietnam Service Medal (VSM).  The CIB is not included in the list of awards contained in Item 41.  Item 41 is also void of any Helicopter or Door Gunner Badges but does show the applicant qualified as a Sharpshooter with the M-16 rifle on 3 March 1971.  

4.  The applicant’s Official Military Personnel File (OMPF) is void of any orders or other documents that indicate he was ever recommended for or awarded the CIB or a Helicopter Gunner Badge during his active duty tenure.  It is also void of any orders awarding any kind of marksmanship or gunner badge.  

5.  On 27 September 1972, the applicant was honorably separated after completing 1 year, 8 months, and 3 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 and VSM.  The CIB is not included in the list of awards contained in Item 24 and the applicant authenticated the DD Form 214 with his signature on the date of his REFRAD.  

6.  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 with the VSM for each campaign a member is credited with participating in while serving in the RVN.  Table B-1 contains a list of campaigns and shows that during the applicant’s tenure of assignment in the RVN, participation credit was granted for the Consolidation II and Vietnam Cease-Fire campaigns.  


7.  Chapter 8 of the awards regulation 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 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.  The awards regulation identifies no Door Gunner (Rifle) and Helicopter Gunner Badges as authorized Army Badges.

8.  Department of the Army General Order Number 8, dated in 1974, authorized the award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to all personnel assigned to the RVN from 8 February 1962 through 28 March 1973. 

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 be evidence that the member held and served in an infantry MOS in a qualifying infantry unit of brigade, regiment or smaller size, and that the member was personally present and participated with the qualifying infantry unit while it was engaged in active ground combat with enemy forces.  

2.  The evidence of record shows that during his RVN tour although he held and served in MOS 11B, he was not assigned to a traditional infantry unit and did not perform traditional line company infantry duties.  His record confirms he served as a door gunner and rifleman in cavalry/aviation units, and there is no evidence confirming he was present with an infantry unit of brigade, regimental or smaller size while the unit was actively engaged in ground combat with enemy forces, combat service alone does not support award of the CIB.  His record is also void of any orders or other documents indicating that he was ever recommended for or awarded the CIB by proper authority while serving on active duty.  In addition, 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 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.  


3.  Although the applicant’s record shows he held an infantry MOS, absent any evidence confirming his performance of traditional infantry duties in a qualifying infantry unit, or that confirms his personal presence and participation with the unit while it was engaged in active ground combat with enemy forces, 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.  The Army awards regulation does not identify Door Gunner (Rifle) and Helicopter Gunner Badges as authorized awards.  Therefore, given it is unclear what specific badges the applicant is referring to in his application, and because his record is void of any orders awarding any badges, there is an insufficient evidentiary basis to support granting this portion of the requested relief.  The applicant is advised that if he can identify a specific badge authorized in Army Regulation 600-8-22, which he believes he is entitled to, he may submit a new application with supporting evidence to request the specific badge in question.  

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.

6.  The applicant’s record does show he qualified as a Sharpshooter with the
M-16 rifle on 3 March 1971, and as a result is entitled to the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  It also shows that based on his RVN service and campaign participation, he is entitled to the RVN Gallantry Cross with Palm Unit Citation and 2 bronze service stars with his VSM.  The omission of these awards from his separation document is an administrative matter that does not require Board action.  Therefore, the Case Management Support Division, St. Louis, Missouri, will administratively correct the applicant’s record to show his entitlement to these awards.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ___x____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice related to award of the Combat Infantryman Badge or Helicopter and Door Gunner Badges.  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 errors in the records of the individual concerned should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show his entitlement to the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and 
2 bronze service stars with his Vietnam Service Medal; and by providing him a correction to his separation document that includes these changes.  




      _______ 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)                                         AR20080010309



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ABCMR Record of Proceedings (cont)                                         AR20080010309


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