IN THE CASE OF:	  

		BOARD DATE:	  5 February 2009

		DOCKET NUMBER:  AR20080018331 


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), Bronze Star Medal (BSM), and all other awards he may be eligible for. 

2.  The applicant states, in effect, that his separation document (DD Form 214) does not reflect his award of the CIB or BSM because he did not receive these awards until after he received the DD Form 214.  He now requests these awards be added to his DD Form 214, along with any other awards he may be eligible for based on his service in the Republic of Vietnam (RVN).

3.  The applicant provides his DD Form 214 and a DA Form 1577 (Authorization for Issuance of Awards) 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 he was inducted into the Army of the United States (AUS) and entered active duty on 26 October 1965.  He was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman) and the highest rank he attained while serving on active duty was specialist four (SP4)/E-4.  His Enlisted Qualification Record (DA Form 20) shows he served in the RVN from 2 August 1966 through 8 August 1967.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company B, 5th Battalion, 7th Cavalry Regiment, 1st Cavalry Division, performing duties in MOS 11B as an grenadier and rifleman.  Item 41 (Awards and Decorations) shows that he earned the following awards during his active duty tenure:  National Defense Service Medal (NDSM); Vietnam Service Medal (VSM); Purple Heart (PH); RVN Vietnam Campaign Medal (RVNCM); Air Medal (AM); Army Commendation Medal (ARCOM); 1 Overseas Service Bar; and Expert Marksmanship Qualification Badge with Rifle Bar. 

3.  The applicant's record is void of any orders or other documents that indicate he was ever recommended for or awarded the BSM by proper authority while serving on active duty.  

4.  On 3 August 1967, the applicant was honorably released from active duty after completing a total of 1 year, 9 months, and 8 days of active military service and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  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 following awards:  NDSM, VSM, AM, VCM, ARCOM, PH, Expert Marksmanship Qualification Badge with Rifle Bar, and Marksman Marksmanship Qualification Badge with Pistol Bar.

5.  On 28 June 1986, a Correction to his DD Form 214 (DD Form 215) was issued that amended Item 24 of his DD Form 214 by adding the Army Good Conduct Medal and RVN Gallantry Cross with Palm Unit Citation.

6.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), 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 the BSM pertaining to the applicant.

7.  The applicant provides a copy of a DA Form 1577, dated 18 July 1986.  This document indicates the applicant received the CIB.


8.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-13 contains guidance on the VSM.  It states, in pertinent part, that a bronze service star is authorized with this award for each RVN campaign a member is credited with participating in.  

9.  Paragraph 3-14 of the awards regulation contains guidance on award of the BSM.  It states, in pertinent part, that it is awarded to any person who, while serving in any capacity in or with the Army of the United States after 6 December 1941, distinguished himself or herself by heroic or meritorious achievement or service.  

10.  Chapter 8 of the award regulations contains guidance on award of combat badges.  It states, in pertinent part, that the CIB is awarded to infantry officers and to enlisted and warrant officer personnel who have an infantry MOS. They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  In similar cases, the Awards Branch of the Human Resources Command (HRC) has advised that during the Vietnam era the CIB was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11D, 11F, 11G, or 11H.  

11.  United States Army Vietnam (USARV) Regulation Number 672-1, Appendix V, stated, in pertinent part, that personnel possessing an infantry MOS in a rifle squad or a cavalry platoon of an armored cavalry troop would be eligible for award of the CIB if other criteria was also met.

12.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It shows that during this period, participation credit was granted for the Vietnam Counteroffensive Phase II and Vietnam Counteroffensive Phase III campaigns.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was eligible for the CIB was carefully considered and found to have merit.  The evidence of record shows that during his RVN tour, the applicant served in an infantry MOS, in a qualifying infantry unit.  He was awarded the PH and, based upon his assignment, any reasonable doubt as to whether those wounds were incurred while he was in ground combat should be resolved in his favor.  As a result, the regulatory burden of proof 

necessary to support award of the CIB has been satisfied in this case.  Therefore, it would be appropriate to add this award to his record and separation document at this time. 

2.  The evidence of record also shows that based on his RVN service and campaign participation, the applicant is eligible for 2 bronze service stars with his VSM.  Therefore, it would also be appropriate to add these awards to his record and separation document at this time

3.  The applicant's contention that he was awarded the BSM was also carefully considered.  However, there is insufficient evidence to support this claim.  The applicant's record is void of any orders or other documents that indicate he was ever recommended for or awarded the BSM by proper authority while serving on active duty.  The BSM is not included in the list of awards contained in Item 41 of his DA Form 20 or in Item 24 of his final DD Form 214.  Further, there are no BSM orders pertaining to the applicant on file in the ADCARS maintained by DA. As a result, absent any evidence of record or independent evidence submitted by the applicant that confirms he was awarded the BSM, there is an insufficient evidentiary basis to support granting this portion of the requested relief. 

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 awarding him the Combat Infantryman Badge; showing his entitlement to 
2 bronze service stars with his Vietnam Service Medal; and by providing him a correction to his separation document that reflects these changes.  


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 the Bronze Star Medal.



      _________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)                                         AR20080018331



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ABCMR Record of Proceedings (cont)                                         AR20080018331



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