IN THE CASE OF:	  

		BOARD DATE:	  March 5, 2009

		DOCKET NUMBER:  AR20080019235 


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 he be awarded the Combat Infantryman Badge and that it be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states, in effect, that he served in an infantry line unit (Company B, 5th Battalion, 46th Infantry of the 198th Infantry Brigade) from August 1968 through August 1969.  Their duties included scouting, patrolling, blocking operations, and you name it.  Most of it was air-mobile.  Many of his friends were killed or wounded in combat.

3.  In support of his request, the applicant provides those documents he lists on an index sheet titled, "Please Find the Enclosed."

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel has remained silent to allow the applicant to present his own case; however, counsel respectfully requests to be appropriately informed of all actions taken in the case.

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 records show he was inducted into the Army of the United States and entered active duty on 18 October 1967.  He completed basic combat training at Fort Dix, New Jersey, and his advanced individual training at Fort Jackson, South Carolina.  After completing all required training, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant served in Vietnam from 25 August 1968 through 19 August 1969 with Company B, 5th Battalion, 46th Infantry Regiment, 198th Infantry Brigade.

4.  The applicant was honorably released from active duty on 22 August 1969 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), as an early release overseas returnee.  He was released from active duty in the rank and pay grade of specialist four (SP4)/E-4.  On the date he was released from active duty he had completed 1 year, 10 months, and 5 days of active military service, with no lost time.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the National Defense Service Medal, the Marksman Marksmanship Qualification Badge with Rifle Bar, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), two overseas service bars, and the Army Commendation Medal.  The Combat Infantryman Badge is not shown on the applicant's DD Form 214.

6.  There is no entry in Item 41 (Awards and Decorations) of the applicant's DA Form 20 (Enlisted Qualification Record) showing he was awarded the Combat Infantryman Badge.

7.  There are no orders in the applicant's military personnel records awarding him the Combat Infantryman Badge.


8.  The applicant's fellow Soldier, JJS, submitted a statement in support of the applicant in which he wrote that he served in the Americal Division from October 1968 through October 1969.  He and the applicant participated in countless combat missions together.  No other details were given.

9.  Another of the applicant's fellow Soldiers, RJR, submitted a statement in support of the applicant in which he wrote he served together in the Americal Division from October 1968 through October 1969.  He and the applicant participated together in combat duty consisting of firefights, snipers, and mines.  When this fellow Soldier returned home after his tour ended, he returned "with a Combat Infantryman Badge and two merit awards for participating in two specific combat arenas."  No additional details were given about the time frame during which the awards were received by this fellow Soldier.

10.  In a letter to his parents, dated March 1969, the applicant's fellow Soldier describes the event that had transpired over the two previous days.  He describes in detail how they had allegedly come under mortar attack and the amount of returning fire and implements of war that were used in repelling the enemy.  The applicant's fellow Soldier continues by stating they went out the next morning and found 10 dead North Vietnamese Army (NVA) soldiers which he felt was unusual because the NVA normally took their dead with them so that the American forces would not know how many of them had been killed or wounded in action.  There was no mention of any probability for awards for valor or even the Combat Infantryman Badge to either the applicant or his fellow Soldier in the letter.

11.  In a letter addressed to his parents, dated July 1969, RJR describes combat situations in which they provided security for downed helicopter pilots and crews, an encounter that he and the applicant were allegedly involved in wherein they served in ground combat and actually came under enemy fire, a "dust-off mission" in which they loaded their wounded on a helicopter only to have the helicopter crash after only a few moments in flight due to hits taken by it while in early flight, and an escape from a large group of NVA soldiers and their accidentally coming across an NVA hospital and finding fresh graves dug only the day before.  There is no indication either the fellow Soldier or the applicant were recommended for awards for valor due to their alleged combat actions or even for award of the Combat Infantryman Badge.

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Combat Infantryman Badge 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.  

DISCUSSION AND CONCLUSIONS:

1.  To be entitled to award of the Combat Infantryman Badge, the evidence must show that the applicant held and served in an infantry MOS while assigned or attached to an infantry unit of brigade, regimental or smaller size, and must have served in active ground combat while assigned or attached to this infantry unit.

2.  The evidence shows the applicant was assigned to an infantry unit of company size in an infantry MOS while he served in Vietnam.  One fellow Soldier, in his statement, stated he and the applicant participated in combat missions; however, there was no indication they encountered the enemy and actually came under fire in active ground combat.  There was also no mention or indication that either was recommended for an award for valor or the Combat Infantryman Badge.

3.  Another fellow Soldier stated he and the applicant served together in Vietnam and participated in combat duties consisting of firefights, snipers, and mines.  In letters this fellow Soldier wrote to his parents, he described in detail how they had come under mortar attack one evening and the amount of returning fire and the implements of war that were used in repelling the enemy, the cleaning up of the battlefield that was required on the morning after an engagement, and a number of other combat-related activities they engaged in.  This included providing security for downed helicopter pilots and crews, encounters that he and the applicant were allegedly involved in wherein they served in ground combat and actually came under enemy fire, a "dust-off mission" in which they loaded their wounded on a helicopter only to have the helicopter crash after only a few moments in flight due to hits taken by it while in early flight, and an escape from a large group of NVA soldiers who pursued them when they accidentally came across an NVA hospital and found fresh graves dug only the day before.  However, there is a conspicuous absence of an indication either the fellow Soldier or the applicant were recommended for awards for valor or for award of the Combat Infantryman Badge due to their alleged combat actions.

4.  There is no indication in the applicant's service personnel record he was recommended for or received the Combat Infantryman Badge or that he was considered for award of a decoration for valor.

5.  Based on the available evidence, the applicant is not entitled to award of the Combat Infantryman Badge and to have it added to his DD Form 214.



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.



      _________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)                                         AR20080019235



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ABCMR Record of Proceedings (cont)                                         AR20080019235



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