IN THE CASE OF:
BOARD DATE: 04 NOVEMBER 2008
DOCKET NUMBER: AR20080014038
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 that he be awarded the Combat Action Badge (CAB).
2. The applicant states, in effect, that he should have been awarded the CAB in recognition for his service in Vietnam as a truck driver transporting ammo and artillery to forward bases. He drew hazardous duty pay but was never awarded the CAB. He goes on to state that he was engaged in moving supplies and ammo into all areas of the III Corps and he came under fire many times. He continues by stating that the lack of having a CAB is interfering with his Department of Veterans Affairs (VA) claim and he has been denied a rating for Post-Traumatic Stress Disorder (PTSD) because he was only a truck driver with no awards or badges.
3. The applicant provides no additional documents with 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was inducted in Pittsburgh, Pennsylvania on 18 October 1966. He completed his basic combat training at Fort Gordon, Georgia and was transferred to Fort Eustis, Virginia to undergo his training as a heavy vehicle driver.
3. He remained at Fort Eustis until he was transferred to Vietnam on 26 October 1967, where he served as both a light and heavy vehicle driver. He was advanced to the pay grade of E-4 on 24 February 1968.
4. He departed Vietnam on 17 October 1968 and was transferred to Oakland Army Base, California, where he was honorably released from active duty (REFRAD) on 18 October 1968 as an early overseas returnee. He had served 1 year, 11 months and 17 days of total active service and his DD Form 214 issued at the time of his REFRAD reflects that he was awarded the National Defense Service Medal, the Vietnam Service Medal and the Republic of Vietnam Campaign Medal.
5. On 2 May 2005, the Chief of Staff of the Army approved the creation of the Combat Action Badge to provide special recognition to Soldiers who personally engaged, or are engaged by, the enemy.
6. Army Regulation 600-8-22 (Military Awards) states the requirements for award of the Combat Action Badge are branch and MOS immaterial. Assignment to a combat arms unit or a unit organized to conduct close or offensive combat operations, or performing offensive combat operations is not required to qualify for the Combat Action Badge. However, it is not intended to award the Combat Action Badge to all Soldiers who serve in a combat zone or imminent danger area. The Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized. The Soldier must be personally present and actively engaging or being engaged by the enemy, and performing satisfactorily in accordance with the prescribed rules of engagement. The Soldier must [not] be assigned or attached to a unit that would qualify the Soldier for the Combat Infantryman Badge or the Combat Medical Badge.
7. Army Regulation 600-8-22 also states that award of the Combat Action Badge is authorized from 18 September 2001 to a date to be determined. Award for qualifying service in any previous conflict is not authorized. Retroactive awards of the Combat Action Badge are not authorized prior to 18 September 2001.
DISCUSSION AND CONCLUSIONS:
1. While the sincerity of the applicant's contention that he came under fire many times while serving in Vietnam is not in question, the fact is that there was not a CAB in existence during the Vietnam War.
2. The Combat Infantryman and Combat Medic Badges were the only such badges authorized and they were only authorized for infantryman and medics who engaged the enemy in combat while assigned to an infantry unit. The applicant did not meet any of those criteria and thus was ineligible for those awards.
3. The CAB was not authorized until 2 May 2005 and was made retroactive only to 18 September 2001. Accordingly, the applicant is not entitled to award of the CAB for his service in Vietnam.
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:
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.
_______ _ XXX______ ___
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) AR20080014038
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ABCMR Record of Proceedings (cont) AR20080014038
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