IN THE CASE OF:	

		BOARD DATE:	23 June 2009  

		DOCKET NUMBER:  AR20090002013 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Combat Infantryman Badge.

2.  The applicant states that he is currently receiving benefits from the Department of Veterans Affairs (VA) based on the fact that he was awarded the Combat Infantryman Badge; however, it is not shown on his DD Form 214.

3.  The applicant provides a copy of his DD Form 214, dated 12 April 1973, and a copy of an extract of his undated VA rating decision, 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 records show he enlisted in the Regular Army for a period of 3 years on 13 April 1970.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11H (Infantry Direct Fire Crewman).  He was honorably released from active duty in the rank/grade of specialist four (SP4)/E-4 on 12 April 1973 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  He completed
3 years of creditable active military service during this period. 

3.  The applicant's records further show that he served in the Republic of Vietnam from on or about 1 September 1970 to 28 March 1971.  He was assigned to Company C, 2nd Battalion, 327th Infantry.

4.  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 Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Army Commendation Medal, and one overseas service bar.  Item 24 does not show award of the Combat Infantryman Badge.

5.  The applicant's DA Form 20 (Enlisted Qualification Record) is not available for review with this case.

6.  The applicant's records do not contain orders awarding him the Combat Infantryman Badge.

7.  On 21 June 1974, subsequent to separation from the Regular Army, the applicant enlisted in the Ohio Army National Guard (OHARNG). 

8.  Item 9 (Awards, Decorations, and Campaigns) of his DA Form 2-1 (Personnel Qualification Record) created on 2 January 1992 shows he was awarded the Combat Infantryman Badge. 

9.  The applicant's records also show he executed several extensions in the OHARNG and he was honorably discharged and transferred to the USAR Control Group (Retired Reserve) on 1 May 1992. 

10.  Item 15 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded This Period) of the National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was awarded, among other awards, the Combat Infantryman Badge.



11.  Army Regulation 600-8-22 (Military Awards) provides for award of the Combat Infantryman Badge.  This regulation states 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 to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.  Specific requirements state, in effect, that an Army enlisted Soldier must have an infantry specialty and satisfactorily performed duty while assigned or attached as a member of an infantry unit of brigade, regimental, or smaller size during any period such unit was engaged in active ground combat.  A recipient must be personally present and under hostile fire while serving in an assigned infantry primary duty in a unit actively engaged in ground combat with the enemy.  Commanders were not allowed to make any exceptions to this policy.  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 applicant contends that his DD Form 214 should be corrected to show award of the Combat Infantryman Badge.

2.  The applicant's DA Form 2-1 and NGB Form 22, created at a much later date, show the applicant was awarded the Combat Infantryman Badge.  However, these two forms were not used at the time of the applicant's service in the Republic of Vietnam.  Thus, they become secondary or non-contemporaneous source documents.

3.  Absent orders or other documentary evidence that clearly shows the applicant was personally present and under hostile fire while serving in an assigned infantry primary duty in a unit actively engaged in ground combat with the enemy, these two forms by themselves are insufficient on which to base adding the Combat Infantryman Badge to his DD From 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)                                         AR20090002013



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ABCMR Record of Proceedings (cont)                                         AR20090002013



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