IN THE CASE OF:	  

		BOARD DATE:	       14 MAY 2009

		DOCKET NUMBER:  AR20090000341 


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 his date of birth be corrected on his DD Form 214 (Certificate of Release or Discharge from Active Duty).  Additionally, he requests award of the Combat Infantryman Badge (CIB) and reconsideration of an earlier request for award of the Purple Heart.

2.  The applicant states that this date of birth should be listed as 9 September 1948 instead of 5 September 1948.

3.  The applicant provides a copy of his Texas driver's license.

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 ABCMR denied the applicant’s request for the award of the Purple Heart in Docket Number AR2002076935, dated 19 November 2002.  The Board stated that there was no evidence in the applicant's records which shows that he was wounded or injured as a result of hostile action in Vietnam.  Army Regulation 
15-185 sets forth procedures for processing requests for correction of military records.  The regulation states, in effect, that the ABCMR may reconsider an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not been previously reconsidered.  Such requests must provide new evidence or arguments that were not considered at the time of the ABCMR's prior consideration.  The ABCMR staff reviewed the applicant's request and examined the original ABCMR decision with the evidence that was submitted in support of that case.  The applicant's request was not received within one year of the ABCMR's original decision and he has failed to provide any new evidence or argument.  Therefore, the applicant’s request for the award of the Purple Heart will not be addressed in these proceedings.  

3.  The applicant's military records show he enlisted in the Regular Army on
24 July 1967.  After completion of basic and advanced individual training, he was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).  Through a series of reenlistments, the applicant was honorably retired for physical disability on 7 July 1983. 

4.  Item 5 of the applicant's DD Form 214 with an effective date of 7 July 1983 lists his date of birth as 5 September 1948.  

5.  The applicant's Texas driver's license lists his date of birth as 9 September 1948.

6.  All the forms, documents, and papers prepared during his enlistment, to include, DD Forms 214, a certificate of clearance, a statement of personal history, a data for payment of retired pay application, retirement computations, physical examinations, and a record of emergency data show his date of birth as 9 September 1948.

7.  The applicant’s records show that he served as a cannon crewmember in Vietnam from 4 February 1968 through 4 February 1969 and from 6 February 1971 through 31 December 1971.  During his first tour in Vietnam, he was assigned to C Battery, 2d Battalion,11th Field Artillery and during his second tour he was assigned to B Battery, 5th Battalion, 38th Field Artillery. 




8.  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 persons who have an infantry military occupational specialty (MOS).  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  Additionally, Appendix V of USARV 672-1 provides that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11D, 11F, 11G, or 11H.

DISCUSSION AND CONCLUSIONS:

1.  The documents contained in the applicant's records verify that his date of birth is  9 September 1948.  Therefore, the applicant’s DD Form 214 for the period ending 7 July 1983 should be corrected to show his date of birth as 9 September 1948 instead of 5 September 1948.

2.  There is no evidence in the available records to show that the applicant should be awarded the CIB.  There is no evidence that the applicant held an infantry MOS and served in an infantry unit of regimental size or smaller in active ground combat, which is required by regulation for award of the CIB.  The evidence of record shows the applicant held a field artillery MOS.  In view of this fact, there is an insufficient basis for award of the CIB.

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 his date of birth on his DD Form 214 dated 7 July 1983 as 9 September 1948.

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 award of the CIB.  




      _______ _   _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)                                         AR20090000341





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ABCMR Record of Proceedings (cont)                                         AR20090000341



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