IN THE CASE OF:	  

		BOARD DATE:	        6 AUGUST 2009

		DOCKET NUMBER:  AR20090004719 


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, he served in a combat zone in the Republic of Vietnam (RVN) for over 7 months  and his military occupational specialty (MOS) was 11B (Infantryman). 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 enlisted in the Regular Army and entered active duty on 28 May 1970.  He completed advanced individual training (AIT) in MOS 11B (Light Weapons Infantryman) at Fort Ord, California, and was awarded the primary MOS 11B on 27 November 1970.  His DA Form 20 (Enlisted Qualification Record) shows that he was awarded a secondary MOS of 95B (Military Police) on 3 May 1971 in item 22 (MOSs).  Item 31 (Foreign Service) shows he served in the RVN from 3 January through 5 August 1971.  Item 38 (Record of Assignments) shows that during his RVN tour he was assigned to the 66th Military Police (MP) Company, performing duties in MOS 95B as a military policeman until 20 July 1971, at which time he entered a patient status at the 67th Evacuation Hospital.  The CIB is not included in the list of earned awards entered in Item 41 (Awards and Decorations) and the applicant last audited the DA Form 20 on 4 May 1973.  

3.  The applicant's Official Military Personnel File (OMPF) contains orders issued by the 93rd Military Police Battalion in the RVN on 3 May 1971, which awarded the applicant the secondary MOS 95B.  His record is void of any orders or other documents that indicate he ever served in his primary MOS of 11B in an infantry unit, or that he was ever recommended for or awarded the CIB by proper authority while serving in the RVN.  

4.  On 25 May 1973, the applicant was honorably released from active duty, in the rank of private first class (PFC), after completing 2 years, 11 months, and
28 days of active military service.  The DD Form 214 he was issued at the time shows he earned the following awards:  Vietnam Service Medal with 2 bronze service stars, RVN Campaign Medal with 60 Device, and National Defense Service Medal.  

5.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Chapter 8 contains guidance on award of combat and special skill badges, and paragraph 8-6 contains guidance on award of the CIB.  It states, in pertinent part, that there are three basic requirements for the CIB.  The member must hold and serve in an infantry MOS; must be assigned to a qualifying infantry unit of brigade, regimental or smaller size; and must have been present and participated with his qualifying infantry unit while it was engaged in active ground combat with enemy forces.  It further stipulates that combat service alone is not a sufficient basis to support award of the CIB.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is eligible for the CIB because he held the MOS 11B and served in the RVN, a combat zone, for 7 months 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 not only be evidence that a member held an infantry MOS, but also that he served in a qualifying infantry unit of brigade, regimental, or smaller size, and that he was personally present and participated with the qualifying infantry unit while it was engaged in active ground combat with enemy forces.  The applicant's record confirms that during his tour of duty in the RVN, he was assigned to an MP unit and performed duties in MOS 95B, as a military policeman, as evidenced by entries in item 38 of his DA Form 20, and orders on file in his OMPF.  

3.  Further, the applicant's record is void of any orders or other documents indicating that the applicant was ever recommended for or awarded the CIB by proper authority while serving on active duty, and the CIB is not included in the list of awards contained in Item 41 of his DA Form 20, which he last audited on
4 May 1973, nearly two years after he departed from the RVN, and just a few weeks prior to his separation.  

4.  There is no indication that the applicant ever raised this issue while he remained on active duty.  As a result, although he held the primary MOS 11B, the evidence of record confirms he served in MOS 95B in an MP unit while serving in the RVN.  As a result, given he did not perform duties as an infantryman and did not serve in a qualifying infantry unit while serving in the RVN, the regulatory burden of proof necessary to support award of the CIB has not been satisfied in this case.  Therefore, it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to grant the requested relief.  

5.  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.



      _______ _  XXX _______   ___
               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)                                         AR20090004719



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ABCMR Record of Proceedings (cont)                                         AR20090004719



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