IN THE CASE OF:	

		BOARD DATE:	22 September 2009    

		DOCKET NUMBER:  AR20090006149 


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 (CIB) and the Silver Star.

2.  The applicant indicates he does not know the reason for the error.

3.  The applicant provides a copy of Special Orders Number 290, dated 17 October 1966, and a newspaper article 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 was inducted into the Army of the United States on 3 November 1965.  Upon the completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 11B (light weapons infantryman).  The highest grade he attained was specialist four/E-4.

3.  The applicant was assigned to Vietnam on 2 August 1966 with Company B, 5th Battalion, 7th Cavalry, 1st Cavalry Division, as an automatic rifleman in duty MOS 11B.

4.  The applicant's DA Form 20 (Enlisted Qualification Record) does not list the CIB in item 41 (Awards and Decorations).

5.  The applicant provided a copy of Headquarters, 1st Cavalry Division (Airmobile), Special Orders Number 290, dated 17 October 1966, which show the CIB was awarded to Soldiers assigned to Company B, 5th Battalion, 7th Cavalry.  The applicant's name is listed on these orders.  The original copy of these orders is not contained in his service personnel records.

6.  The applicant departed Vietnam on 31 January 1967.

7.  The applicant was released from active duty on 2 November 1967.  He completed 2 years of active military service.

8.  His DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), and the Purple Heart.

9.  The applicant's service personnel records contain a DD Form 215 (Correction to DD Form 214), dated 1 February 1968, which amended his DD Form 214 to show award of the Vietnam Service Medal with one bronze service star and the Air Medal.

10.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This document shows that at the time of the applicant's assignment to the 5th Battalion, 7th Cavalry, 1st Cavalry Division, it was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Headquarters, Department of the Army, General Orders Number 59, dated 1969.

11.  Department of the Army Pamphlet 672-3 shows that at the time of the applicant's assignment to the 5th Battalion, 7th Cavalry, 1st Cavalry Division, it was cited for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation by Headquarters, Department of the Army, General Orders Number 42, dated 1972.

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the CIB is awarded to infantry officers and to enlisted and warrant officer persons 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.  Additionally, appendix V of U.S. Army Vietnam Regulation 672-1 provides that during the Vietnam era the CIB was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11D, 11F, 11G, or 11H.  Appendix V of U.S. Army Vietnam Regulation 672-1 also states that the term "smaller size" infantry unit is a unit of squad, platoon, or company size.  For example, 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 were also met.

13.  Title 10, U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for the timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant completed infantry training and was awarded MOS 11B.  He was assigned to Company B, 5th Battalion, 7th Cavalry, 1st Cavalry Division, as an automatic rifleman during his tour in Vietnam.

2.  The applicant provided a copy of special orders which indicate that he and other Soldiers of his unit, Company B, 5th Battalion, 7th Cavalry, were awarded the CIB on 17 October 1966.  Since the applicant has met the requirements for award of the CIB, these orders are accepted as sufficient evidence on which to base correction of his DD Form 214 to show the CIB.

3.  A review of the applicant's records indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

4.  The applicant was assigned to a unit during a period it was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  Therefore, these awards should be added to his DD Form 214.

5.  While there is insufficient documentation and evidence for awarding the applicant the Silver Star, this in no way affects the applicant’s right to pursue his claim for the Silver Star by submitting a request with an award recommendation and supporting evidence through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ____x____  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 to add the CIB, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the Silver Star.



      ____________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)                                         AR20090006149



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ABCMR Record of Proceedings (cont)                                         AR20090006149



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