IN THE CASE OF:	  

		BOARD DATE:	  25 June 2009

		DOCKET NUMBER:  AR20090003527 


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 award of the Combat Infantryman Badge and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he completed 90 days of foreign service instead of 29.

2.  The applicant states that he should have been awarded the Combat Infantryman Badge because his duties in the Army were those of an infantryman. He adds that his DD Form 214 shows his military occupational specialty (MOS) as 76Y (Supply Specialist); however, that was not the MOS he performed in during combat in the Republic of Vietnam.  It was the MOS assigned to him at Fort McClellan, AL, when he returned from the Republic of Vietnam on emergency leave.  He also adds that his DD Form 214 incorrectly shows he completed 29 instead of 90 days of foreign service in the Republic of Vietnam.

3.  The applicant provides a copy of his DD Form 214, dated 23 January 1969; a self-authored letter, dated 11 February 2009; a copy of his unit’s morning report as of 16 April 1968; a copy of Special Orders Number 293, issued by Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, on 20 October 1967; four statements of support, dated on various dates in October and November 2008; and various pictures of himself undergoing infantry training at Fort Polk, LA, 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 was inducted into the Army of the United States on 21 April 1967.  He completed basic combat training at Fort Benning, GA; advanced individual training at Fort Polk, LA; and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  

3.  The applicant’s records also show that subsequent to completion of infantry MOS training, he was reassigned to the Republic of Vietnam on or about 20 October 1967.  He was initially assigned to the U.S. Army Republic of Vietnam (USARV) Transient Detachment and was subsequently reassigned on 24 October 1967 to Company C, 3rd Battalion, 22nd Infantry, 25th Infantry Division.

4.  On or around 18 November 1967, the applicant departed the Republic of Vietnam on emergency leave due to family hardship conditions.  

5.  On 18 December 1967, he was attached to the U.S Army School/Training Center (USAS/TC) and Fort McClellan, Fort McClellan, AL, pending a compassionate reassignment, and on 27 March 1968, he was permanently assigned to the USAS/TC and awarded MOS 76Y.  He was honorably separated in the rank/grade of specialist four /E-4 on 23 January 1969 and transferred to the U.S. Army Reserve Control Group.

6.  Item 22b (Total Active Service) of his DD Form 214 shows he completed 1 year, 9 months, and 3 days of creditable active service and item 22c (Foreign and/or seas Service) shows he completed 29 days of foreign service.

7.  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 Expert Marksmanship Qualification Badge with Rifle Bars   (M-14 and M-16), and the Expert Marksmanship Qualification Badge with Machinegun Bar (M-60).  Item 24 does not show award of the Combat Infantryman Badge.

8.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 (Enlisted Qualification Record) does not show he was awarded the Combat Infantryman Badge.  Furthermore, there are no orders in the applicant's records that show he was awarded the Combat Infantryman Badge.

9.  The applicant submitted a self-authored statement, a copy of his unit’s morning report as of 16 April 1968, and four statements of support as follows:

	a.  in his self-authored statement, dated 11 February 2009, the applicant states that after completion of infantry training, he arrived in the Republic of Vietnam on 27 October 1967 and was there for approximately two months.  He then departed Vietnam on emergency leave and did not return.  He remained at Fort McClellan, AL, where he was given MOS 76Y although he was not trained in that MOS.  He also states that while in Vietnam, he held an infantry MOS and was assigned to an infantry unit that participated in actual combat, and feels he should have been awarded the Combat Infantryman Badge.  He concludes that he was young at the time and did not pay attention to his DD Form 214.  However, he now has Post Traumatic Stress Disorder and needs his DD Form 214 corrected to show award of the Combat Infantryman Badge; 

	b.  the applicant provided a copy of Company C, 3rd Battalion, 22nd Infantry, unit morning report as of 16 April 1968 which shows he held MOS 11B;

	c.  in a statement, dated 5 November 2008, one of the applicant’s former unit members states that he was in the same unit around the same timeframe and remembers the battles that the applicant has written about in his report.  He adds that he remembers the village where his unit moved all the people out of their village, destroying that village, burning all the hooches, throwing grenades into their wells, killing their livestock, capturing the rice, and even digging their graves in search for supplies and weapons.  He also states that his unit was in a lot of contact during November and December 1967 and that the unit lost several Soldiers.  He also states that on one particular ambush, his platoon leader was killed and several other members were wounded;





	d.  in a statement, dated 9 November 2008, another former member of the applicant’s unit in the Republic of Vietnam states that upon arrival in Vietnam, he, the applicant, and other Soldiers were loaded into a truck at Camron Bay and were transported to division headquarters.  Just before they got to the gate, they were ambushed by the enemy.  They got under the truck and remained pinned down at that location since they did not have weapons at the time.  He also states that after checking into their units a few days later, their base camp was attacked by mortar and small arms fire.  He further states that as a new replacement, he and other new Soldiers were told to dig up bodies.  In one instance, they were loaded onto a helicopter and dropped in a village where they captured an enemy soldier and went on to “tear the village apart” looking for weapons and supplies.  He also states that it was in that village where the applicant was hit in the back and that he knows this because an enemy soldier fired a rifle grenade behind them and that he was hit by fragments and was subsequently bandaged by medical personnel; 

	e.  in a statement, dated 28 October 2008, a retired staff sergeant (SSG) and former member of the applicant’s platoon states that the applicant participated in some of the worst fighting of the war and that he witnessed the platoon medic treating the applicant for wounds received during enemy contact.  He adds that the applicant was a radio telephone operator at the time and that when the platoon leader was killed he (the SSG) assumed command of the platoon and that C and A Companies sustained heavy casualties at the battle site.  He also adds that he witnessed the grave-digging incident experienced by the applicant and that it was a practice to dig up graves in search of enemy weapons and food. He further states that the applicant qualified for the Combat Infantryman badge and the Purple Heart and that due to the heavy casualties sustained between November 1967 and January 1968, there was no one remaining in the company to prepare and verify the applicant’s paperwork; and

	f.  in a statement, dated 23 October 2008, another former member of the applicant’s platoon states that the event of being ambushed and taking cover under the trucks did take place.  He also attached a copy of his DD Form 214 and orders to show that he was present with the applicant at the time.  

10.  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, 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.  

11.  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 specifically stated that criteria for award of the Combat Infantryman Badge identified the man who trained, lived, and fought as an infantryman and the Combat Infantryman Badge is the unique award established to recognize the infantryman and only the infantryman for his service.  Further, “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 and warrant officer persons 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.

12.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training and will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  Item 22c (Foreign and Sea Service) of the version in effect at the time, showed, for enlisted personnel, the total active duty outside the continental limits of the United States for the period covered by the DD Form 214. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show award of the Combat Infantryman Badge and the correct period of foreign service.

2.  With respect to the applicant's period of foreign service, the evidence of record shows that the applicant arrived in the Republic of Vietnam on or about 20 October 1967.  He departed on or around 18 November 1967 on emergency leave and did not return to the Republic of Vietnam.  He was attached to USAS/TC and Fort McClellan, Fort McClellan, AL, on 18 December 1967 pending a compassionate reassignment and was ultimately honorably separated on 23 January 1969.  He completed 29 days of foreign service which is correctly shown on his DD Form 214.

3.  With respect to the Combat Infantryman Badge, the applicant's infantry MOS is not in question.  He was trained in and held an infantry MOS.  However, during his truck incident, the applicant states that just before he and other new Soldiers got to the gate, they were ambushed by the enemy and that they got under the truck and remained pinned down at that location since they did not have weapons at the time.  He would not have qualified for award of the Combat Infantryman Badge for that incident as he was not assigned to an infantry unit during this incident.

4.  With respect to the Combat Infantryman Badge, after checking into his infantry unit, again, the applicant's infantry MOS and assignment to an infantry unit from 24 October 1967 to 18 November 1968 is not in question.  However, the statements provided by his former comrades suggest that Company C, 3rd Battalion, 22nd Infantry, heavily engaged the enemy during December 1967 and January 1968, well after the applicant had departed the Republic of Vietnam. Additionally, the practice of digging up graves in search of food and/or weapons and the incident of burning a village in search of the enemy do not suggest his unit was engaged in active ground combat and/or that he was actively participating in such ground combat.  Therefore, he does not satisfy the requirements for award of the Combat Infantryman Badge.

5.  In the absence of evidence that the applicant actively participated in combat while assigned to an infantry unit, there is insufficient evidence upon which to base award of the Combat Infantryman Badge in this case.

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)                                         AR20090003527



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ABCMR Record of Proceedings (cont)                                         AR20090003527



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