IN THE CASE OF:	  

		BOARD DATE:	  7 May 2009

		DOCKET NUMBER:  AR20090000597 


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 the Combat Infantryman Badge (CIB) and all unit citations he is authorized 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 his DD Form 214 does not list the CIB or the unit awards he earned while serving in the Republic of Vietnam (RVN).   

3.  The applicant provides no additional documentary evidence 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 20 February 1969.  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).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in Item 38 (Record of Assignments) that the applicant served in MOS 11B as a rifleman with Company D, 5th Battalion, 12th Infantry Regiment, 199th Light Infantry Brigade in the RVN from 2 August through 6 October 1969.  It further shows that he entered a patient status on 7 October 1969, at the 7th Field Hospital, Japan, and that he remained in that status until being medically evacuated to Fort Knox, Kentucky on 2 November 1969.  Item 40 (Wounds) is blank and Item 41 (Awards and Decorations) shows that during his active duty tenure he earned the National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), Army Good Conduct Medal (AGCM) and Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  The applicant's record contains a Valley Forge General Hospital letter, dated 29 January 1970, which was written by the applicant's Neurologist.  It confirms the applicant was incapacitated by polymyositis from 2 October 1969 through 
29 January 1970, and that he would not be able to resume full duty activities for a period of about 1 year.  It also contains a Report of Medical History (SF 89), dated 28 October 1970, and Item 32 indicates the applicant had been evacuated from the RVN for a chest operation (muscles) on 7 October 1969.

5.  On 19 February 1971, the applicant was honorably released from active duty after completing a total of 2 years of active military service.  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 NDSM, AGCM, VSM with 1 bronze service star, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).  

6.  On 16 September 1971, the applicant was issued a DD Form 215 (Correction the D Form 214) which corrected Item 3 (Social Security Number) to reflect the seventh digit as a "9."  

7.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Chapter 8 contains guidance on award of the CIB and states, in pertinent part, that in order to be eligible for the CIB, a member must have held and served in an infantry MOS; they must have served in a qualifying infantry unit of brigade, regimental, or smaller size; and they must have been present and personally participated with a qualifying infantry unit while it was actively engaged in ground combat with enemy forces.

8.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that during the applicant’s tenure of assignment in the RVN, his unit (5th Battalion, 12th Infantry Regiment) received the RVN Gallantry Cross with Palm Unit Citation and the RVN Civil Actions Honor Medal First Class Unit Citation. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to include unit awards he is eligible for based on his service in the RVN was carefully considered and found to have merit.  The available evidence confirms the applicant is eligible for award of the RVN Gallantry Cross with Palm Unit Citation and the RVN Civil Actions Honor Medal First Class Unit Citation.   Therefore, it would be appropriate to add these awards to his record and DD Form 214 at this time.

2.  The applicant's contention that he should be awarded the CIB and that it should be added to his record and DD Form 214 was carefully considered. However, there is insufficient evidence to support this claim.  By regulation, in order to support award of the CIB, there must be evidence not only that the member held an infantry MOS and served in a qualifying infantry unit, but also that he was personally present and participated with his qualifying infantry unit while it was engaged in active ground combat with enemy forces.  Service in a combat zone alone does not support award of the CIB.  

3.  The available evidence shows the applicant served in the RVN just over 
2 months before being hospitalized in Japan and ultimately medically evacuated to the United States for a non-combat related illness.

4.  The record is void of any orders or other documents indicating the applicant was ever recommended for or awarded the CIB by proper authority while serving in the RVN, there are no documents or records entries on file that confirm his presence and participation with his qualifying infantry unit while it was engaged in active ground combat with enemy forces.  As a result, the regulatory criteria necessary to support award of the CIB has not been satisfied in this case.



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:

   a.  adding the following awards to his DD Form 214:  Republic of Vietnam Gallantry Cross with Palm Unit Citation and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation; and 

   b.  providing him a correction to his DD Form 214 that includes these awards. 
   
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 award of the Combat Infantryman Badge.




      _______ 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)                                         AR20090000597



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ABCMR Record of Proceedings (cont)                                         AR20090000597


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