IN THE CASE OF:	

		BOARD DATE:	18 June 2009  

		DOCKET NUMBER:  AR20090004019 


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 Infantryman Badge (CIB). 

2.  The applicant states, in effect, that he believes he should have been awarded the CIB because he was a foot Soldier and spent most of his time in the Republic of Vietnam (RVN) fighting the enemy and trying to survive in the jungle.

3.  The applicant provides the following documents in support of his application:  DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); Department of Veterans Affairs (VA) Rating Decision, dated 15 July 2008; Application for Retired Pay Benefits (DD Form 108); Chronological Statement of Retirement Points (AHRC Form 249-E); Pay Scale; Army Commendation Medal (ARCOM) Certificate; Headquarters, 11th Armored Cavalry Regiment Quarterly Evaluation Report; United States Armed Services Center for Research of Unit Records, dated 29 April 1998; Annual Historical Summary, 2nd Squadron, 11th Armored Cavalry Regiment (1 January through 
31 December 1968); Headquarters, 11th Armored Cavalry Regiment Operational Report, dated 22 November 1969; and Senior Officer Debriefing Report, 11th Armored Cavalry Regiment, dated 16 January 1970.

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 12 December 1967.  He was trained in and awarded military occupational specialty (MOS) 94B (Cook) and the highest rank he attained while serving on active duty was specialist five (SP5).

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 31 October 1968 through 30 October 1969.  Item 38 (Record of 
Assignments) shows that during his RVN tour, he was assigned to Headquarters and E Troop, 2nd Squadron, 11th Armored Cavalry Regiment, performing duties in MOS 94B as a cook.  Item 41 (Awards and Decorations) shows he earned the National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), RVN Campaign Medal (RVNCM) with Device (1960), 2 Overseas Service Bars, and the Expert Marksmanship Qualification Badge with Rifle (M-16 and M-14) Bar.  The CIB is not included in the list of awards contained in Item 41.

4.  The applicant's record is void of any orders or other documents that indicate he was ever recommended for or awarded the CIB by proper authority while serving on active duty.

5.  On 26 October 1969, the applicant was honorably released from active duty (REFRAD) and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  The DD Form 214 he was issued upon his REFRAD shows that he completed 1 year, 
10 months, and 15 days of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he earned the NDSM, Army Good Conduct Medal (AGCM), VSM, and RVNCM.  The CIB is not included in the list of awards contained in Item 24.
6.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Chapter 8 of the award regulations 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.  United States Army Vietnam (USARV) Regulation Number 672-1, Appendix V, stated that the CIB was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11F, 11G, or 11H.  It also stated, in pertinent part, that personnel possessing an infantry MOS in a rifle squad or a cavalry platoon of an armored cavalry troop would be eligible for award of the CIB if other criteria was also met.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he is entitled to the CIB was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, in order to support award of the CIB there must be evidence that the member held and served in an infantry MOS, that he served in a qualifying infantry unit of brigade, regimental or smaller size, and that he was present and participated with his qualifying infantry unit while it was engaged in active ground combat with enemy forces.  Combat service alone did not support award of the CIB. 

3.  The evidence of record in this case confirms that although the applicant served in a qualifying unit while serving in the RVN, he did not hold and serve in an infantry MOS.  The record confirms he held and served in MOS 94B as a cook during his tenure of assignment in the RVN.  As a result, the regulatory criteria requiring that a member hold and served in an infantry MOS in order to qualify for the CIB has not been satisfied in this case.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief. 

4.  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.  

5.  The applicant and all others concerned should 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.  


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)                                         AR20090004019



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ABCMR Record of Proceedings (cont)                                         AR20090004019



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