IN THE CASE OF:	  

		BOARD DATE:	  3 September 2009

		DOCKET NUMBER:  AR20090005333 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was assigned to the 3rd Battalion, 5th Cavalry Regiment, 9th Infantry Division, during his tour of duty in the Republic of Vietnam.  The applicant also requests award of the Combat Infantryman Badge (CIB).

2.  The applicant states, in effect, that his record is in error because it does not show his first unit of assignment.  The applicant also states that he served in combat in the Republic of Vietnam, conducting reconnaissance.

3.  The applicant provides his DD Form 214 as documentary evidence in support of this 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 that he enlisted in the Regular Army and entered active duty on 18 September 1969.  He completed basic combat training and advanced individual training.  Upon completion of advanced individual training, he was awarded the military occupational specialty (MOS) 11D (Armor Reconnaissance Specialist).  The applicant reenlisted for a period of 3 years on 30 November 1970.  The highest rank he attained while serving on active duty was specialist four (SP4)/pay grade E-4.

3.  An entry in the top margin of the applicant's DA Form 20 (Enlisted Qualification Record) shows that temporary records were reconstructed for him at Bien Hoa on an unspecified date.  Item 31 (Foreign Service) of this form shows the applicant served a tour of duty in the Republic of Vietnam during the period 28 April 1971 through 3 March 1972.

4.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows that during his tour of duty in the Republic of Vietnam, the applicant was assigned to Headquarters and Headquarters Company, 1st Battalion, 12th Cavalry Regiment, 3rd Brigade (Separate), 1st Cavalry Division (Airmobile), from 22 November 1971 through 27 November 1971.  He was also assigned to Company E, 1st Battalion, 12th Cavalry Regiment, 3rd Brigade (Separate), 1st Cavalry Division (Airmobile), from 28 November 1971 through 27 February 1972.  Item 38 also shows that the applicant's duty MOS was 11B throughout his tenure in the Republic of Vietnam.  Item 38 also shows the applicant's unit of assignment at the time of his separation was Headquarters and Headquarters Company, 4th Battalion, 63rd Armor Regiment, 1st Infantry Division, located at Fort Riley, Kansas. 

5.  Item 41 (Awards and Decorations) of the applicant’s DA Form 20 does not include the CIB and item 48 (Date of Audit) shows the applicant last audited the DA Form 20 on 25 April 1972.

6.  The applicant's military personnel records jacket (MPRJ) 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.  Additionally, the MPRJ contains no evidence that the applicant was ever assigned to the 3rd Battalion, 5th Cavalry Regiment, 9th Infantry Division, or that he was personally present and participated with an infantry unit while it was engaged in active ground combat with enemy forces.

7.  The applicant's DD Form 214 for the period ending 18 August 1972 shows that he was discharged from the Army with an under honorable conditions characterization of service after completing 2 years, 6 months, and 29 days of active military service.  Item 12 (Last Duty Assignment and Major Command) of the DD Form 214 shows the applicant was assigned to Headquarters and Head-quarters Company, 4th Battalion, 63rd Armor Regiment, 1st Infantry Division, located at Fort Riley, Kansas, at the time of his separation.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) does not show award of the CIB.

8.  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.

9.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  It provided a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  In pertinent part, the regulation stated that item 12 would show the last unit and major command to which the separating Soldier was assigned.  The regulation made no provision for inclusion of previous units on the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his DD Form 214 should be corrected to show he was assigned to the 3rd Battalion, 5th Cavalry Regiment, 9th Infantry Division, during his tour of duty in the Republic of Vietnam and that he is entitled to award of the CIB were carefully considered.

2.  Contemporaneous policy prescribed inclusion of the last unit and major command to which the separating Soldier was assigned on the DD Form 214.  There was no provision for inclusion of previous units on the DD Form 214.  Therefore, the applicant's DD Form 214 was properly constituted as pertains to his unit of assignment and he is not entitled to have his previous units shown on the form.  Additionally, a thorough review of the applicant's available record revealed no evidence that he was ever assigned to the 3rd Battalion, 5th Cavalry Regiment, 9th Infantry Division.


3.  By regulation, in order to support award of the CIB, there must not only be evidence that a member served in an infantry MOS in an infantry unit, but also that he was personally present and participated with the qualifying infantry unit while it was engaged in active ground combat with enemy forces.

4.  The applicant's MPRJ is void of any orders or other documents indicating that he was ever recommended for or awarded the CIB by proper authority while serving on active duty.  The CIB is not included in the list of awards contained in item 41 of his DA Form 20 which he last audited on 25 April 1972, 1 month after he departed from the Republic of Vietnam, and 4 months prior to his separation.  In effect, this audit was his verification that the information contained on the record, to include the list of awards in item 41, was correct on that date.

5.  Although the evidence of record shows the applicant was performing infantry duties in an infantry unit, there is no evidence confirming he was personally present and participating with the unit while it was engaged in active ground combat with enemy forces.  As a result, the regulatory burden of proof necessary to support award of the CIB has not been satisfied in this case.  

6.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit any 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)                                         AR20090005333



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ABCMR Record of Proceedings (cont)                                         AR20090005333



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