IN THE CASE OF:	  

		BOARD DATE:	        12 May 2009

		DOCKET NUMBER:  AR20090001598 


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, correction of the military occupational specialty (MOS) that is recorded on his separation orders and discharge document and award of the Combat Infantryman Badge.

2.  The applicant states, in effect, he entered military service on 5 May 1964, was initially awarded MOS 36A1O (Field Communications Crewman) as his primary MOS (PMOS), and then awarded MOS 36K2O (Field Wireman) as his PMOS.

	a.  The applicant states he was assigned to Headquarters Battery, 2nd Howitzer Battalion, 37th Artillery, Bad Kissingen, Germany, and he held PMOS 36K2O for 1 year before he reenlisted.

	b.  The applicant states he reenlisted on 8 October 1965 for the infantry and was assigned in MOS 11B (Infantryman) to an infantry rifleman company of the 1st Battalion, 39th Infantry Regiment.

	c.  The applicant states in September 1967 he was assigned in MOS 11B2O to Company D, 3rd Battalion, 8th Infantry, 4th Infantry Division, in Vietnam.

	d.  The applicant states he was then assigned to Company D, 2nd Battalion, 8th Infantry, 4th Infantry Division, and was serving in MOS 11B2O when he was wounded in action in Vietnam on 26 March 1968.

	e.  The applicant states he was reassigned to Fitzsimons General Hospital, Denver, Colorado, in MOS 11B2O.  He also states that when he was discharged, his PMOS was changed to 36K2O; however, MOS 11B2O should have been his PMOS and MOS 36K20 his secondary MOS (SMOS).

	f.  The applicant concludes by stating the fact that his MOS was changed while at the hospital is why he was not awarded the Combat Infantryman Badge.

3.  The applicant provides copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) with effective dates of 7 October 1965 and 6 December 1968; Headquarters, 249th General Hospital, Japan, Special Orders Number 89, dated 12 April 1968; Standard Form (SF) 88 (Report of Medical Examination), dated 11 July 1968; two-page SF 502 (Clinical Record - Narrative Summary), dated 19 August 1968; DA Form 8-118 (Medical Board Proceedings), dated 22 August 1968; and Headquarters, Fitzsimons General Hospital, Denver, Colorado, Special Orders Number 252, dated 1 November 1968.

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 military service records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there are sufficient documents, essentially those provided by the applicant in support of his application, for the Board to conduct a fair and impartial review of this case.

3.  In support of his application, the applicant provides the following documents.

	a.  DD Form 214 with an effective date of 7 October 1965.  This document shows the applicant was inducted in the U.S. Army and entered active duty for a period of 2 years on 5 May 1964.  Item 28 (Service Schools or Colleges, College Training Courses and/or Post-Graduate Courses Successfully Completed), in pertinent part, shows the applicant completed the Field Communications Crewman course on 19 September 1964 and item 25a (Specialty Number and Title) shows he was awarded MOS 36A1O (Field Communications Crewman).  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Marksman Marksmanship Qualification Badge with (M-14) Rifle Bar.  This document also shows the applicant was assigned to Headquarters Battery, 2nd Howitzer Battalion, 37th Artillery, Germany, and that he was honorably discharged on 7 October 1965 for the purpose of his immediate reenlistment.  At the time he had completed 1 year, 5 months, and 3 days of net active service this period and 1 year and 12 days of foreign service.

	b.  Headquarters, 249th General Hospital, Japan, Special Orders Number 89, dated 12 April 1968, that shows, in pertinent part, the applicant was reassigned from the 249th General Hospital (Japan) to Fitzsimons General Hospital, Denver, Colorado, on or about 20 April 1968.  The Standard Name Line (SNL) shows, in pertinent part, the applicant’s PMOS as "11B2O."

	c.  SF 88, dated 11 July 1968, that documents the applicant’s medical examination for the purpose of his physical evaluation board (PEB).  Item 17 (Rating or Specialty) contains the entry "11B2O Infantry."

	d.  A two-page SF 502, dated 19 August 1968, prepared for the applicant’s medical evaluation board (MEBD).  The Military History section of the Narrative Summary, in pertinent part, contains the entry "His primary MOS is 11B2O, Infantry; his secondary MOS is 36K2O, Field Communications."

	e.  DA Form 8-118, dated 22 August 1968, that documents the applicant’s MEB Proceedings.  Item 14 (Military Occupational Specialties), block a, contains the entry "Infantry, 11B2O, 2  4/12" (Time in Each).

	f.  Headquarters, Fitzsimons General Hospital, Denver, Colorado, Special Orders Number 252, dated 1 November 1968, that shows, in pertinent part, the applicant appeared before a PEB and was ordered to proceed to the place designated (i.e. his home) on 6 November 1968 to await final orders and disposition as directed by the Secretary of the Army.  The SNL shows, in pertinent part, the applicant’s PMOS as "36K2O."

	g.  DD Form 214 with an effective date of 6 December 1968.  This document shows the applicant entered active duty in the Regular Army for a period of 6 years on 8 October 1965.  Item 25 (Education and Training) is absent an entry and item 23a (Specialty Number and Title) shows he was awarded MOS 36K2O (Field Wireman).  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Purple Heart with 1st Oak Leaf Cluster, Good Conduct Medal, Vietnam Service Medal with one bronze service star, Vietnam Campaign Medal, and one Overseas Service Bar.  This document also shows the applicant’s last duty assignment was Company D, 3rd Battalion, 8th Infantry, 4th Infantry Division, U.S. Army Vietnam, and that he was honorably retired based on permanent disability.  At the time he had completed 3 years, 1 month, and 27 days of net active service this period; 1 year, 5 months, and 3 days of other service; 4 years and 7 months of total active service; and 2 years, 3 months, and 17 days of foreign service.

4.  A review of The Adjutant General's Office, Casualty Division, Casualty Reference Name Listing for Vietnam confirmed that the applicant’s name is listed on the roster twice as having been wounded in action on 11 November 1967 and on 26 March 1968.  The Major Organization column of the document for both line entries shows the applicant was assigned to an infantry unit at the time.

5.  The applicant’s available military records do not contain any orders to show he was awarded MOS 11B as his PMOS.

6.  The applicant’s available military records do not contain any orders to show he was awarded the Combat Infantryman Badge.  In addition, a search of the U.S. Army Human Resources Command, Awards and Decorations Computer Assisted Retrieval System for the Vietnam Conflict failed to produce orders showing award of the Combat Infantryman Badge or any other individual decoration(s) to the applicant.

7.  Army Regulation 600-8-22 (Military Awards) provides for award of the Combat Infantryman Badge and states, in pertinent part, that there are basically three requirements for award of the Combat Infantryman Badge.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned or attached to an infantry unit of brigade, regimental or smaller size during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.

8.  U.S. Army Vietnam Regulation Number 672-1 (Awards and Decorations) specifically governed award of the Combat Infantryman Badge to Army forces operating in South Vietnam.  This regulation established the criteria for award of the Combat Infantryman Badge as the man who trained, lived, and fought as an infantryman.  It stated that the Combat Infantryman Badge is the unique award established to recognize the infantryman and only the infantryman for his service and further added, "the Combat Infantryman Badge is not an award for being shot at or for undergoing the hazards of day-to-day combat."  This regulation also stated the Combat Infantryman Badge was authorized for award to infantry officers and to enlisted Soldiers who have an infantry MOS and required that they must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  Award of the Combat Infantryman Badge during the Vietnam-era was announced in unit special orders, normally published at battalion or brigade level.

9.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.  This Army regulation states that the purpose of a separation document is to provide the individual with documentary evidence of their military service at the time of separation.  Therefore, it is important the information entered thereon is complete and accurate as of that date.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders.  The instructions for item 23a, in pertinent part, state to enter the primary MOS code number and title.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the MOS that is recorded on his separation orders and final DD Form 214 should be corrected to show he held MOS 11B2O as his PMOS.  He also contends that his DD Form 214 should be corrected to show award of the Combat Infantryman Badge.

2.  The evidence of record shows the applicant completed the Field Communications Crewman course, was awarded MOS 36A1O as his PMOS, and that he held this as his PMOS when he was discharged on 7 October 1965.

3.  The applicant’s available military records are absent any orders showing he was awarded MOS 11B as his PMOS.

4.  The evidence of record shows that orders issued on 12 April 1968 pertaining to the applicant’s medical evacuation, along with documents related to the applicant’s MEBD/PEB processing (from 11 July through 22 August 1968) indicate that his PMOS was 11B2O, and that he held the MOS for a period of 2 years and 4 months (i.e., from April 1966 to August 1968).  However, whether MOS 11B was actually awarded as the applicant's PMOS or SMOS, or he merely performed duty in MOS 11B, cannot be definitively determined from the available evidence.  Therefore, in the absence of orders awarding the applicant MOS 11B as his PMOS or some other substantiating evidence, there is insufficient evidence to support correction of the applicant’s separation orders and final DD Form 214, particularly in view of the evidence below.

5.  The evidence of record shows that, subsequent to his PEB, the applicant was ordered home pending final orders and disposition of his case.  The evidence of record also shows that the orders issued on 1 November 1968 show the applicant’s PMOS was 36K2O.  Thus, it is reasonable to conclude that a thorough review of the applicant’s military personnel records conducted during his separation processing revealed that MOS 36K2O was, in fact, the applicant’s PMOS.  As a result, the applicant’s separation orders and final DD Form 214 were prepared to document the true state of affairs at the time of his permanent disability retirement.  Therefore, in view of all of the foregoing, the applicant is not entitled to correction of his records in this case.

6.  While the evidence of record indicates that the applicant was assigned to an infantry unit and he may have performed the duties of an infantryman during his service in Vietnam, this is insufficient evidence to support correction of his records to show award of the Combat Infantryman Badge.  In this regard, there are no orders in the available military records that show he was awarded the Combat Infantryman Badge and a thorough review of the U.S. Army Human Resources Command, Awards and Decorations Computer Assisted Retrieval System for the Vietnam Conflict failed to produce orders showing award of the Combat Infantryman Badge to the applicant.  Therefore, in view of the foregoing, the applicant is not entitled to award of the Combat Infantryman Badge in this case.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_____X___  _____X___  ____X____  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that 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.



      ____________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)                                         AR20090001598



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ABCMR Record of Proceedings (cont)                                         AR20090001598



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