IN THE CASE OF:	

		BOARD DATE:	  23 December 2008

		DOCKET NUMBER:  AR20080016679 


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 reconsideration of his previous request that his records be corrected to show award of the Combat Infantryman Badge (CIB).

2.  The applicant states while he was in Vietnam, he was presented the CIB by his First Sergeant.  He also states that he was recommended for award of the Purple Heart because he was wounded by sharpened bamboo during a firefight and although the recommendation was disapproved, the documentation should substantiate his award of the CIB.

3.  The applicant provides a copy of a Department of Veterans Affairs (VA) Decision Review Officer Decision in support of his application.

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 AR20070010595, on 27 November 2007.

2.  The Decision Review Officer Decision provided as evidence with this application was not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant's records show he was inducted into the Army of the United States and entered active duty on 5 June 1969.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 11B (Light Weapons Infantryman).  The highest rank he attained while serving on active duty was the grade of specialist four/pay grade E-4.  The applicant served a tour of duty in the Republic of Vietnam during the period 17 November 1969 through 16 November 1970.

4.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that on 9 February 1972, he was separated from active duty under provisions of Army Regulation 635-200 (Personnel Separations) with an honorable characterization of service after completing 
2 years, 8 months, and 5 days of active military service.  He was transferred to the Army National Guard to complete his Reserve obligation.

5.  Item 38 (Record of Assignments) of the applicant's DA Form 20 (Enlisted Qualification Record) shows that during the period of 25 November 1969 through 5 March 1970 he was assigned to Company A, 2d Battalion, 16th Infantry, 
1st Infantry Division performing duties in military occupational specialty 11B as a rifleman in the Republic of Vietnam.

6.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not include the CIB and Item 48 (Date of Audit) shows the applicant last audited the DA Form 20 on 14 September 1970.

7.  The CIB is not included in the list of awards contained in applicant's DD Form 214 item 24 (Decorations, Medals, Badges, Commendation, Citations, and Campaign Ribbons Awarded or Authorized) issued at the time of his release from active duty.  The applicant authenticated this document with his signature in Item 32 (Signature of Member Being Transferred or Discharged) on the date of his separation.

8.  The applicant's records are void of any orders or other documents that indicate he was ever recommended for or awarded the CIB or Purple Heart by proper authority while serving on active duty.

9.  A review of the Awards and Decorations Computer-Assisted Retrieval System an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command failed to reveal any orders for award of the CIB or Purple Heart.

10.  The applicant provided a VA Decision Review Officer Decision, dated 
26 August 2008.  Based on a review of evidence, the VA made the following decision on the applicant's claim:  entitlement to service connection for Post-Traumatic Stress Disorder, Chronic; Major Depressive Disorder, Recurrent is granted with an evaluation of 70 percent effective 23 March 2006.  This decision was based in part on the following evidence:

	a.  Information the applicant provided on a "Statement in Support of Claim for service connection for Post Traumatic Stress Disorder" that, in effect, during the period 20 January 1970 through 16 or 17 February 1970, while assigned to Company A, 2/16 Infantry, 1st Infantry Division, in a province outside of Di An, Vietnam, while on patrol with others, they encountered a North Vietnamese patrol and engaged.  One enemy was killed and the others ran away.

	b.  A U.S. Army and Joint Services Records Research Center reply, dated 
14 July 2008, informed that per the Daily Journals submitted by the 2nd Battalion, 16th Infantry, for the month of February 1970, several engagements with the enemy were documented.  The Daily Journal of 5 February 1970 documents that elements of Company A engaged three North Vietnamese Soldiers at a range of 30 meters and killed one with the remaining two fleeing to the north.  

11.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Chapter 8 contains guidance on award of combat and special skill badges, and 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 military occupational specialty; 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to award of the CIB was carefully considered.

2.  By regulation, in order to support award of the CIB, there must not only be evidence that a member served in an infantry military occupational specialty in an infantry unit, but also that he was personally present and participated with the qualifying infantry unit while it was engaged in active ground combat with enemy forces.  The VA Decision Review Officer Decision document describes a journal entry submitted by the applicant's unit that was similar in nature to a statement made by the applicant regarding engagement with the enemy by his assigned unit.  However, there is not sufficient evidence without corroborating evidence confirming he was personally present and participating with the unit while it was engaged in active ground combat with enemy forces.

3.  As a result, 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 Republic of Vietnam and who faced similar circumstances to grant the requested relief.  

4.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  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.  

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 AR20070010595, on 27 November 2007.




      _______ _ 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)                                         AR20080016679





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ABCMR Record of Proceedings (cont)                                         AR20080016679



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