IN THE CASE OF:	  

		BOARD DATE:	  12 May 2009

		DOCKET NUMBER:  AR20090002258 


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 he be awarded the Combat Infantryman Badge (CIB) and that it be added to his record and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states, in effect, that he served in the Republic of Vietnam (RVN), with Company C, 1st Battalion, 35th Infantry, 4th Infantry Division, from December 1967 through December 1968, was wounded in action on
9 February 1968, and was awarded the Purple Heart (PH).

3.  The applicant provides a copy of his DD Form 214 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 and entered active duty on 19 July 1967.  He completed basic combat training at Fort Benning, Georgia, and advanced individual training (AIT) at 
Fort Polk, Louisiana.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 21 December 1967 to 13 December 1968, and that the highest rank/grade he attained while serving on active duty was sergeant (SGT)/E-5.  Item 38 (Record of Assignments) shows that during his RVN tour he was assigned to Company C, 1st Battalion, 3rd Infantry Regiment, 4th Infantry Division, and performed duties in MOS 11C as an infantry indirect fire crewman.  Item 40 (Wounds) shows he sustained a gunshot wound to his left chest and left upper arm on 9 December 1968, and Item 41 (Awards and Decorations) shows he earned the National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), RVN Campaign Medal (RVNCM), PH, and the Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar.

4.  The applicant's record contains Headquarters, Fort Polk Special Orders Number 286, dated 4 November 1967, which shows he qualified as an “Expert” with the M-16 Rifle in paragraph 215 and with the .45 Caliber Pistol in paragraph 216.  It also contains Headquarters, 2nd Armored Division Special Orders Number 62, dated 3 March 1969, which show he qualified as an “Expert” with the 81 millimeter mortar.

5.  On 18 July 1969, the applicant was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  He had completed a total of 2 years of creditable active military service with 31 days of time lost.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued at the time shows he earned the following awards during his active duty tenure:  VSM with 
4 bronze service stars, NDSM, RVNCM, PH, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

6.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-13 of the awards regulation contains guidance on award of the Vietnam Service Medal.  It states, in pertinent part, that a bronze service star is authorized with this award for each RVN campaign a member is credited with participating in while serving in the RVN.  Appendix B, Table B-1 contains a list of campaigns and it shows that during the applicant’s tenure of assignment in the RVN, participation credit was 
granted for the Vietnam Counteroffensive Phase III (1 June 1967 – 29 January 1968), Tet Counteroffensive (30 January 1968 – 1 April 1968), Vietnam Counteroffensive Phase IV (2 April 1968 – 30 June 1968), Vietnam Counteroffensive Phase V (1 July 1968 – 1 November 1968), and the Vietnam Counteroffensive Phase VI (2 November 1968 – 22 February 1969) campaigns.

7.  Chapter 8 of the awards regulation contains guidance on award of combat badges.  It states, in pertinent part, that the CIB is awarded to infantry officers and to enlisted and warrant officer personnel who have an infantry MOS.  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  

8.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign participation credit, assault-landing credit, and unit citation badges awarded during the Vietnam Conflict.  It confirms that during his tenure of assignment in the RVN, the applicant’s unit (Company C, 1st Battalion, 35th Infantry, 4th Infantry Division) earned the RVN Gallantry Cross with Palm Unit Citation by Department of the Army General Orders (DAGO) 38, dated 1970; and the RVN Civil Actions Honor Medal First Class Unit Citation by DAGO 53, dated 1970.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the CIB has been carefully considered and found to have merit.  The evidence of record confirms that while serving in the RVN, the applicant held and served in an infantry MOS, served in a qualifying infantry unit, and his personal participation in active ground combat is evidenced by his being wounded in action and receiving the PH.  The regulatory criteria necessary to support award of the CIB has been satisfied in this case; therefore, it would be appropriate to award him the CIB and correct his records to show this award.

2.  The evidence of record also includes orders confirming the applicant qualified as an expert with the M-16 Rifle, .45 Caliber Pistol, and 81mm Mortar.  As a result, he is eligible to receive the Expert Marksmanship Qualification Badge with Rifle (M-16), Pistol, and Mortar Bars.  Therefore, it would also be appropriate to add this badge to his records at this time.  

3.  The evidence of record also confirms that based on his service and campaign participation in the RVN, the applicant is eligible for the RVN Gallantry Cross with 
Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit Citation, and 1 silver service star service star for wear on his VSM.  Therefore, these awards should also be added to his records at this time.  
BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting from item 24 of the applicant's DD Form 214 the Vietnam Service Medal;

	b.  awarding the applicant the Combat Infantryman Badge;

	c.  adding to item 24 of the applicant's DD Form 214 the Vietnam Service Medal with 1 silver service star; Republic of Vietnam Gallantry Cross with Palm Unit Citation; Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation; and the Expert Marksmanship Qualification Badge with Rifle (M-16), Pistol, and Mortar Bars; and

	d.  providing him a correction to his DD Form 214 that includes these changes.



      _________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)                                         AR20090002258



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ABCMR Record of Proceedings (cont)                                         AR20090002258



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