IN THE CASE OF:	  

		BOARD DATE:	  	  21 October 2008

		DOCKET NUMBER:  AR20080011371 


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, correction of his discharge document to show award of the Combat Infantryman Badge.

2.  The applicant states, in effect, he earned the Combat Infantryman Badge, but it is not recorded on his discharge document.  He also states that he believes the omission of the Combat Infantryman Badge was a clerical oversight because his service records clearly show his combat service.

3.  The applicant provides a notarized affidavit given by William D. D_____, dated 11 September 2006 and a notarized affidavit given by Danny Lee F_____, dated 12 September 2006.

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 military service records show that he was inducted into the U.S. Army and entered active duty on 22 July 1970.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman).

3.  The applicant's military service records contain a DA Form 20 (Enlisted Qualification Record).

     a.  Item 22 (Military Occupational Specialty) shows he was awarded MOS 11C1O (Infantry Indirect Fire Crewman) as his primary MOS (PMOS) on 
11 December 1970.  Item 31 (Foreign Service) shows that he served in the Republic of Vietnam (RVN) from 4 January 1971 through 16 December 1971.

     b.  Item 38 (Record of Assignments), in pertinent part, shows while serving in the RVN, the applicant was assigned to Company C, 1st Battalion, 12th Cavalry,
1st Cavalry Division (Airmobile) from 15 January 1971 through 18 January 1971 in Duty MOS 11B1O (Light Weapons Infantryman); assigned to Company B,
1st Battalion, 12th Cavalry, 1st Cavalry Division (Airmobile) from 19 January 1971 through 7 July 1971 in Duty MOS 11B2O (Grenadier); and assigned to Company E, 1st Battalion (Airmobile), 12th Cavalry, 1st Cavalry Division (Airmobile) from 8 July 1971 through 15 December 1971 in Duty MOS 11C2O (Indirect Fire Crewman).
 
     c.  Item 41 (Awards and Decorations) shows he was awarded the Air Medal, National Defense Service Medal, Vietnam Service Medal, Sharpshooter Marksmanship Qualification Badge with (M-16) Rifle Bar, and 2 Overseas Service Bars.

4.  The applicant’s DA Form 20 also show that MOS 11C was deleted (i.e., lined-thru) as his PMOS and MOS 63H2O (Automotive Repairman) was awarded as his PMOS with a date of evaluation of May 1972.

5.  There are no orders in the applicant’s military service records to show that he was awarded the Combat Infantryman Badge and his DA Form 20 does not list the Combat Infantryman Badge in Item 41 (Awards and Decorations).

6.  The applicant's military service records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  This document shows the applicant was inducted into the Army of the United States on 22 July 1970.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Air Medal, National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with “1960” Device, Sharpshooter Marksmanship Qualification Badge with (M-16) Rifle Bar, and 2 Overseas Service Bars.  The
DD Form 214 also shows the applicant was honorably released from active duty on 2 February 1972 and transferred to the U.S. Army Reserve Control Group (Annual Training), Reserve Components Personnel Administration Center, St. Louis, Missouri.  At the time, he was credited with completing 1 year, 6 months, and 11 days of net service this period and he had 11 months and 13 days of foreign service.

7.  A search of the U.S. Army Human Resources Command (USA HRC), Awards and Decorations Computer Assisted Retrieval System (ADCARS) for the Vietnam Conflict failed to produce orders pertaining to an award of the Combat Infantryman Badge to the applicant during the period of his service in the RVN.

8.  The applicant's military service records contain an NGB Form 22 (Report of Separation and Record of Service in the Army National Guard of New Mexico and as a Reserve of the Army).  This document shows the applicant enlisted in the New Mexico Army National Guard for a period of 1 year on 22 February 1972.  Item 22 (Military Occupational Specialty and Number) shows he held MOS 63H2O (Automotive Repairman).  Item 24 (Decorations, Citations, Medals, Badges, Commendations, and Campaign Ribbons Awarded or Authorized) is absent an entry showing any awards.  The NGB Form 22 also shows the applicant was honorably discharged on 21 February 1973 and transferred to the USAR Control Group (Reinforcement), Reserve Components Personnel Administration Center, St. Louis, Missouri.  At the time, he was credited with completing 1 year, 0 months, and 0 days length of service this period and
2 years, 7 months, and 0 days of total service for pay purposes.

9.  In support of his application, the applicant provides the following documents:

   a.  A notarized affidavit given by William D. D_____, dated 11 September 2006, states that he served in the RVN from January 1971 to September 1971.  He also states he met the applicant in January 1971 when he was on a combat mission in the RVN while assigned to the 2nd Squad, 2nd Platoon, Company B, 1st Cavalry Regiment, 12th Cavalry Division.  He also states that the gunner for one of the platoon’s three M-60 machine guns was shot in the head and the applicant was selected to replace the wounded gunner.  Mr. D_____ adds that the applicant carried the M-60 for the next 6 months and that he was also assigned as an M-60 gunner to replace another gunner who later left the unit.  Mr. D_____ states that the applicant and he participated in numerous firefights and enemy engagements from January 1971 through September 1971.  He also states that he was awarded the Combat Infantryman Badge in May 1971 for engaging in active hostile ground combat while under enemy fire, as did other infantrymen in the platoon.  He further states that both he and the applicant were awarded the Air Medal for participating in more than 25 combat air assaults.    Mr. D____ concludes by stating that he served alongside the applicant on numerous missions while under hostile enemy fire during the period January 1971 through September 1971 in the RVN and, based on his experience and opinion, the applicant has earned award of the Combat Infantryman Badge.

     b.  A notarized affidavit given by Danny Lee F_____, dated 12 September 2006, who states he held MOS 11B (Infantryman) and served in the RVN from January 1971 to December 1971.  He also states he met the applicant in January 1971 when he was on his first combat mission in the RVN, while assigned to the 2nd Squad, 2nd Platoon, Company B, 1st Cavalry Regiment, 12th Cavalry Division.  He further states that the gunner for the squad’s M-60 machine gun was shot in the head and the applicant, who was the assistant gunner, had to take over.  He further states that the platoon leader ordered him to take over as the assistant gunner.  Mr. F_____ states that this was the first of many firefights he was in as an assistant gunner, along with the applicant as a gunner.            Mr. F_____ adds that the applicant earned the Combat Infantryman Badge at the same time he (Mr. F____) earned the Combat Infantryman Badge.

10.  Army Regulation 600-8-22 (Military Awards) provides for award of the Combat Infantryman Badge and states, in pertinent part, that there are basically three requirements for award of the Combat Infantryman Badge.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned or attached to an infantry unit of brigade, regimental or smaller size during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.

11.  U.S. Army Vietnam Regulation Number 672-1 (Awards and Decorations) specifically governed award of the Combat Infantryman Badge to Army forces operating in South Vietnam.  This regulation established the criteria for award of the Combat Infantryman Badge as the man who trained, lived, and fought as an infantryman.  It stated that the Combat Infantryman Badge is the unique award established to recognize the infantryman and only the infantryman for his service and further added, “the Combat Infantryman Badge is not an award for being shot at or for undergoing the hazards of day-to-day combat.”  This regulation also stated the Combat Infantryman Badge was authorized for award to infantry officers and to enlisted Soldiers who have an infantry MOS and required that they must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  Award of the Combat Infantryman Badge during the Vietnam-era was announced in unit special orders, normally published at battalion or brigade level.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show award of the Combat Infantryman Badge because he served as a gunner of an M-60 machine gun and he was involved in numerous missions while under hostile enemy fire during the period January 1971 through December 1971 in the RVN.

2.  The applicant’s contentions and documentary evidence he provides were carefully considered.  The sincerity and authenticity of the comments in the writings provided in support of the applicant’s claim are not in question.  However, this documentary evidence, provided by 2 former Soldiers and produced more than 37 years after their combat experiences, provides insufficient evidence upon which to base award of the Combat Infantryman Badge.

3.  The evidence of record shows that during the applicant’s service in the RVN the applicant held MOS 11C (Infantry Indirect Fire Crewman) and he was assigned to 3 different companies of the 1st Battalion, 12th Cavalry Regiment, 1st Cavalry Division (Airmobile), an air assault unit.  While the evidence of record shows that the applicant possessed an infantry MOS and that he served in Duty MOS 11B and Duty MOS 11C during his service in the RVN, there is no evidence that shows he was assigned or attached to an infantry unit.  In this regard, there is no evidence of record that shows the applicant served in active ground combat while assigned or attached to an infantry unit (emphasis added) of brigade, regimental or smaller size while serving in the RVN.  In addition, there are no orders or other evidence that show the applicant was awarded the Combat Infantryman Badge.  Therefore, the evidence of record fails to support the applicant’s claim to the Combat Infantryman Badge 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.









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.  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 wants the applicant and all others concerned to 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.




      _______ _   _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)                                         AR20080011371



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ABCMR Record of Proceedings (cont)                                         AR20080011371



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