IN THE CASE OF:	  

		BOARD DATE:	        19 FEBRUARY 2009

		DOCKET NUMBER:  AR20080016366 


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, that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show the award of the Combat Infantryman Badge and any other awards and decorations that he is entitled to that are not already listed on this document.

2.  The applicant essentially states that he was discharged before all of his awards and decorations could be added to his DD Form 214.

3.  The applicant provides his DD Form 214, a VA Form 21-0781 (Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder [PTSD]), and a Privacy Act Release Form in support of this 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 military records show that he was inducted into the Army of the United States on 26 May 1969.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He served in Germany from 19 November 1969 to on or about 24 July 1970.  He then departed for the Republic of Vietnam on 28 August 1970, and was initially assigned as a Grenadier in duty MOS 11B with Company C, 1st Battalion, 61st Infantry Regiment.  On 2 January 1971, he was reassigned to Headquarters and Headquarters Detachment, 75th Support Battalion and served as a Rifleman in duty MOS 11B.  He was reassigned to Company D of this same battalion on 13 January 1971, then was reassigned back to Company C, 1st Battalion, 61st Infantry Regiment on 27 January in duty MOS 11B.  He returned to the continental United States on 17 May 1971, and was honorably released from active duty on 18 May 1971.  The DD Form 214 that he was issued at the time of his release from active duty essentially shows that he was awarded the Army Good Conduct Medal, the National Defense Service Medal, the Vietnam Service Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

3.  The applicant’s DD Form 214 and DA Form 20 (Enlisted Qualification Record) do not show that he was awarded the Combat Infantryman Badge.  There are no orders in his military records which awarded him the Combat Infantryman Badge. His military records do show that he served as a Grenadier in duty MOS 11B with Company C, 1st Battalion, 61st Infantry Regiment from 16 September 1970 to 
1 January 1971, and as a Rifleman in duty MOS 11B with this same unit from   27 January 1971 to on or about 17 May 1971, but there is no evidence in the applicant's military records which conclusively shows that he was personally present and engaged in active ground combat during this period of time.  

4.  The applicant provided a VA Form 21-0781 in which he essentially stated that four Soldiers were killed between 26 January 1971 and 7 April 1971 while he and they were conducting infantry operations.

5.  During a review of the applicant’s records, it was determined that he is entitled to additional awards and decorations that are not shown on his DD Form 214.

6.  The applicant's DD Form 214 does not show that he was awarded the Bronze Star Medal, but he was awarded the Bronze Star Medal by Headquarters, 1st Infantry Brigade, 5th Infantry Division (Mechanized) General Orders Number 451, dated 14 April 1971.

7.  The applicant served in Vietnam from 28 August 1970 to 17 May 1971, but his DD Form 214 does not show that he was awarded the Republic of Vietnam Campaign Medal with "1960" Device.
8.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in 
Vietnam.  This document shows that at the time of the applicant’s two assignments with the 1st Battalion, 61st Infantry Regiment, the battalion was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Department of the Army General Orders Number 42, dated 1972, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation by Department of the Army General Orders Number 24, dated 1972.

9.  The applicant’s DD Form 214 shows that he was awarded the Vietnam Service Medal, but it does not show that he was awarded any bronze service stars to signify campaign participation credit.  Paragraph 2-13 of Army Regulation 600-8-22 (Military Awards) contains the regulatory guidance on the Vietnam Service Medal.  It states, in pertinent part, that a bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.  Table B-1 contains a list of Vietnam campaigns, and it shows that during the applicant's tour in Vietnam, he was credited with participating in the Vietnam Counteroffensive Phase VII campaign.

10.  Army Regulation 600-8-22 provides, in pertinent part, that the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry MOS.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.  Battle or campaign participation credit alone is not sufficient; the unit must have been in active ground combat with the enemy during the period and the applicant must have participated in that ground combat.

11.  This same regulation also provides, in pertinent part, for award of the Republic of Vietnam Campaign Medal with "1960" Device.  This medal was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973.  Qualifying service included assignment in Vietnam for 6 months or more.  Qualifying service outside the geographical limits of the Republic of Vietnam required the individual to provide direct combat support to the Republic of Vietnam and Armed Forces. 

12.  Paragraph 5-1 of Army Regulation 600-8-22 states that orders are not published for service medals, but they are annotated on records by the personnel officer.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show the award of the Combat Infantryman Badge and any other awards and decorations that his is entitled to that are not already listed on this document.

2.  The evidence provided by the applicant in which he essentially stated that four Soldiers were killed between 26 January 1971 and 7 April 1971 while he and they were conducting infantry operations is not corroborated by any evidence in his military records.  Although the applicant possessed and served in an infantry MOS with an infantry unit of brigade, regimental or smaller size during his tour in Vietnam, there is no evidence in his military records, and the applicant failed to provide any evidence which conclusively shows that he personally engaged in active ground combat in Vietnam.  There are also no orders awarding him the Combat Infantryman Badge.  Regrettably, in view of the foregoing, there is insufficient basis for awarding him the Combat Infantryman Badge in this case.
  
3.  General orders awarded the applicant the Bronze Star Medal, but it is not listed on his DD Form 214.  Therefore, he is entitled to correction of his DD Form 214 to show the award of the Bronze Star Medal.

4.  The applicant served in Vietnam for more than 6 months during a qualifying period for award of the Republic of Vietnam Campaign Medal with "1960" Device, but it is not listed on his DD Form 214.  Therefore, he is entitled to correction of his military records to show the award of the Republic of Vietnam Campaign Medal with "1960" Device.

5.  General orders awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation to the 1st Battalion, 61st Infantry Regiment while the applicant was assigned to this battalion.  Therefore, he is entitled to correction of his military records to show the award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.

6.  The applicant participated in one campaign during his tour in Vietnam; therefore, he is entitled to correction of his DD Form 214 to show one bronze service star to be affixed to his already-awarded Vietnam Service Medal.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the award of the Bronze Star Medal, the Republic of Vietnam Campaign Medal with "1960" Device, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and one bronze service star to be affixed to his already-awarded Vietnam Service Medal. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to awarding him the Combat Infantryman Badge.  

3.  The Board wants to thank the applicant for the sacrifices he made in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his honorable service in arms.  




      _______ _ 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)                                         AR20080016366



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ABCMR Record of Proceedings (cont)                                         AR20080016366



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