IN THE CASE OF:
BOARD DATE: 10 March 2009
DOCKET NUMBER: AR20090001910
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 Action Badge.
2. The applicant states, in effect, that he continues to believe he is eligible for an "individual wartime decoration." He states he is providing a copy of a Department of Veterans Affairs (VA) Rating Decision, dated 9 April 2008, which he believes supports his entitlement to an individual award of the CAB.
3. The applicant provides a VA Rating Decision, dated 9 April 2008 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 applicants 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 applicants 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 (AUS) and entered active duty on 20 August 1969. He was trained in, awarded and served in military occupational specialty (MOS) 05C (Radio Operator), and the highest rank he attained while serving on active duty was specialist (SPC).
3. The applicants DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 25 November 1970 through 13 June 1971. Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to the 62nd Signal Company, 37th Signal Battalion, during the period
3 December 1970 through 9 April 1971, performing duties in MOS 05C as a radio operator. It also shows he was assigned to the 14th Signal Company, 37th Signal Battalion, during the period 10 April 1971 through 9 June 1971, performing duties as a radio operator.
4. Item 41 of the DA Form 20 shows that during his tenure on active duty he earned the following awards: National Defense Service Medal; Vietnam Service Medal; Republic of Vietnam Campaign Medal Device (1960); 2 Overseas Service Bars; Expert Marksmanship Qualification Badge with Grenade Bar; and Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar.
5. On 14 June 1971, the applicant was honorably released from active duty after completing 1 year, 9 months, and 25 days 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 upon his release from active duty shows he earned the following awards during his active duty tenure: National Defense Service Medal; Vietnam Service Medal; Republic of Vietnam Campaign Medal with Device (1960); 2 Overseas Service Bars, and the Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar.
6. During the processing of this case, a member of the Board staff reviewed the DA Awards and Decorations Computer Assisted Retrieval System (ADCARS); however, there were no orders in this file indicating the applicant had been awarded any individual wartime decorations while serving on active duty.
7. Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy. Paragraph 8-8 of the awards regulation contains guidance on the CAB. It states, in pertinent part, that in order to qualify for the CAB, a member must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized; he/she must be personally present and actively engaging or being engaged by the enemy, and performing satisfactorily in accordance with
the prescribed rules of engagement; and he/she must be assigned or attached to a unit that would qualify the Soldier for the Combat Infantryman Badge or Combat Medical Badge. The CAB is authorized from 18 September 2001 to a date to be determined. The regulation stipulates that the award is not authorized for qualifying service in any previous conflict.
DISCUSSION AND CONCLUSIONS:
The applicant's claim of entitlement to the CAB for service in the RVN was carefully considered. However, by regulation, the CAB is not authorized for service in conflicts prior to 18 September 2001. Therefore, even if the applicant met the basic eligibility requirements for the CAB, it was not authorized during the period he served in the RVN. Therefore, given there are regulatory provisions prohibiting retroactive award of the CAB, there is an insufficient evidentiary basis to support granting the requested relief.
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) AR20090001910
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