BOARD DATE: 21 July 2009
DOCKET NUMBER: AR20090004555
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 that he be awarded the Combat Infantryman Badge (CIB).
2. The applicant states that he served in Vietnam as an infantryman and was engaged by the enemy on many occasions.
3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
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 enlisted in the Regular Army in Buffalo, New York on 17 January 1968 for a period of 3 years. He completed his basic training at Fort Dix, New Jersey and his advanced individual training (AIT) as a light weapons infantryman at Fort Benning, Georgia before being transferred to Fort Huachuca, Arizona, where he attended and completed the Unattended Ground Sensor Operators Course.
3. On 23 January 1969, he was transferred to Vietnam for assignment to Headquarters and Headquarters Company, 23rd Infantry Division (Americal Division) as a light weapons infantryman.
4. During the period of 12 May to 12 June 1969, he was attached to the United States Military Assistance Command - Vietnam (J-3).
5. On 3 September 1969, he was transferred to the 106th General Hospital as a patient. The available records are silent as to the reasons for his being a patient.
6. On 17 September 1969, he was transferred to the United States Army Hospital at Fort Devens, Massachusetts as a patient.
7. On 6 November 1969, he was transferred to Fort Hood, Texas, where he remained until he was honorably released from active duty (REFRAD) on 15 January 1971, due to the expiration of his term of service (ETS). He had served 2 years, 11 months and 29 days of total active service and his DD Form 214 issued at the time of his REFRAD reflects that he was awarded the National Defense Service Medal, the Vietnam Service Medal with three bronze service stars, the Republic of Vietnam Campaign Medal, and his marksmanship badges.
8. A review of the applicant's official records fails to show that he was ever awarded the CIB. Additionally, there is no evidence or indication of the applicant engaging the enemy in combat.
9. A review of the applicant's final separation medical examination conducted in January 1971 indicates that the applicant had a colon resection due to prolapse 4 months prior. The applicant's name is not contained on the Vietnam Casualty Listing.
10. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry military occupational specialty (MOS). They must have served in active ground combat (engaging the enemy) while assigned or attached to an infantry unit of brigade, regimental or smaller size.
DISCUSSION AND CONCLUSIONS:
1. While the sincerity of the applicant's claim that he engaged the enemy in combat on many occasions is not in doubt, there is simply no evidence to show that such was the case.
2. Therefore, in the absence of evidence to show that he engaged the enemy while serving in an infantry unit in Vietnam 40 years ago, it must be presumed that what the Army did at the time was appropriate.
3. 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.
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) AR20090004555
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ABCMR Record of Proceedings (cont) AR20090004555
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