IN THE CASE OF:	  

		BOARD DATE:	  1 October 2009

		DOCKET NUMBER:  AR20090006360 


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:

The applicant's request, statements, and evidence are submitted through counsel from the Vietnam Veterans of America.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, reconsideration of the applicant's earlier petition to the Board requesting that the Combat Infantryman Badge (CIB) be added to his record and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  Counsel states, in effect, the Board's finding that the applicant failed to submit sufficient evidence that he had been awarded the CIB was in error.  Therefore, it was an abuse of discretion and was not in accord with the facts.  Thus, it violated both the Administrative Procedures Act (APA) and due process clause of the fifth amendment of the U.S. Constitution.

3.  Counsel provides a self-authored letter, a copy of a newspaper article from the Hartshorne Sun newspaper, Hartshorne, Oklahoma, dated 12 December 1968, and a letter from the Hartshorne Sun newspaper, dated 14 November 2008, in support of the request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080007774 on 21 October 2008.

2.  During its original review of the case, the Board determined there was no evidence of record that verified that the applicant had been personally present with his qualifying infantry unit in the Republic of Vietnam (RVN) while the unit was actively engaged in ground combat with enemy forces.  It also determined there were no orders awarding the applicant the CIB on file in his military record or entries on his DA Form 20 (Enlisted Qualification Record) that confirmed he was ever awarded the CIB by proper authority while serving in the RVN.  Paragraph 3 of THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE of the 21 October 2008 Record of Proceedings (ROP) includes the newspaper article in question in the list of exhibits reviewed and considered by the Board during this original review.

3.  The applicant's counsel provides a self-authored letter, a copy of a newspaper article, and a letter from the Hartshorne Sun newspaper as new evidence in support of the reconsideration request.  In his letter, counsel argues that he provided a newspaper article, dated 12 December 1968, with the original application which reported that the applicant had been awarded the CIB on 9 November 1968.

4.  Counsel also claims the language in the article unmistakably was quoted verbatim from the standard Army press release sent to hometown papers when a Soldier received an award.  He claims the ROP published on 21 October 2008 made no mention of this evidence having been considered, or explaining why it was rejected if it was considered, which was a legal error.  He argues that the letter he now provides from the Hawthorn Sun, which indicates the article in question was based on a military news release pertaining to the applicant, is conclusive evidence that the award was made and the fact his military records do not show the award or that he ever engaged with the enemy is completely beside the point and irrelevant.

5.  Counsel claims the failure of the Board to accord this evidence the weight to which it is entitled would mean the Board is contending the news article is false, since there can be no other reasonable explanation.  Counsel also argues that it is a well-known fact that during the Vietnam War, and even now during the current wars, records of awards often do not make it into a Soldier's record when he is suddenly transferred to another unit, as was the applicant.

6.  Counsel further argues that to suggest that because there is no military record of the CIB, the award was not made is an unsupportable contention and would be an additional violation of the APA and U.S. Constitution.  Therefore, he claims the Board should amend its original decision and correct the applicant's record to show he was awarded the CIB.

7.  Counsel provides a newspaper article pertaining to the applicant that indicates he was awarded the CIB on 9 November 1968 in the RVN.  He also provides a letter from the Hartshorne Sun newspaper, dated 14 November 2008, which indicates that the news article in question was based on a military news release regarding the applicant and ran in the 12 December 1968 issue of the Hartshorne Sun newspaper.

8.  The applicant's record shows he initially enlisted in the Regular Army and entered active duty on 19 January 1968.  He successfully completed basic combat training and advanced individual training at Fort Polk, Louisiana, and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman) on 24 May 1968.

9.  On 28 September 1968, the applicant was honorably discharged for the purpose of immediate reenlistment after completing 8 months and 10 days of active military service.  The DD Form 214 he was issued at this time shows in item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) that he earned the National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), and Marksman Marksmanship Qualification Badge with Rifle Bar during the period covered by the DD Form 214 (19 January-28 September 1968).  On 29 September 1968, the applicant reenlisted for 3 years.

10.  Item 31 (Foreign Service) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 23 June 1968 through 26 June 1969.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company B, 3rd Battalion, 12th Infantry Regiment, from 5 July through 3 October 1968 performing duties in MOS 11B as a rifleman; and that from 7 October 1968 through 20 June 1969 he was assigned to the 5th Light Equipment Maintenance Company performing duties in MOS 44A (Metal Repairer) as a metalworking apprentice.

11.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not include the CIB in the list of earned awards and item 48 (Date of Audit) confirms the applicant last audited this record on 5 August 1969.

12.  The applicant's military personnel records jacket (MPRJ) is void of any orders or other documents that indicate he was ever recommended or awarded the CIB by proper authority while serving in the RVN.

13.  On 20 October 1971, the applicant was honorably released from active duty (REFRAD) in the rank of specialist four after completing a total of 3 years, 8 months, and 10 days of creditable active military service.  The DD Form 214 he was issued at the time shows he earned four bronze service stars with his VSM and the RVN Campaign Medal during the period covered by the DD Form 214 (29 September 1968-20 October 1971).  The CIB is not included in the list of awards contained in item 24.  The applicant's record is void of any indication that he ever raised the CIB issue while he remained serving on active duty or at the time of his REFRAD.

14.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards policy.  Chapter 8 contains guidance on the award of badges and tabs of U.S. origin and paragraph 8-6 contains guidance on award of the CIB.  It states, in pertinent part, that 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 personally present and participated with the qualifying infantry unit while it was engaged in active ground combat with enemy forces.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-2 contains guidance on the operation of the ABCMR and states, in pertinent part, that the Board will decide cases on the evidence of record and is not an investigative body.  The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing in Title 10, U.S. Code, section 1034, and Department of Defense Directive 7050.6) or request additional evidence or opinions.  Paragraph 2-9 contains guidance on the burden of proof and states, in pertinent part, that the ABCMR begins consideration of each case with a presumption of administratively regularity, that the military record is correct, and the applicant has the burden of proving otherwise through a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The contention of the applicant and his counsel is that the Board erred in rendering its original decision in that it did not consider and/or give the weight deserved to the independent evidence (newspaper article) submitted with the application.  However, by regulation, the ABCMR begins consideration of each case with a presumption of administratively regularity, that the military record is correct, and the applicant has the burden of proving otherwise through a preponderance of the evidence.

2.  The ROP documenting the original decision of the Board clearly identifies the newspaper article in question as an exhibit that was reviewed and considered by the Board.  Further, the military news release that resulted in the publication of the article in question could have been based on information from any number of unofficial sources, to include the applicant, and was not necessarily based on official documents or records.  As a result, the existence of this newspaper article alone, without the corroboration of official military record entries or official orders/documents, is not sufficiently compelling to support granting the requested relief.

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

4.  The applicant's DA Form 20 confirms he served as an infantryman in a qualifying infantry unit in the RVN for just less than 3 months.  The CIB is not included in the list of earned awards contained in item 41 and he last audited the DA Form 20 on 5 August 1969, subsequent to completing his tour in the RVN.  The CIB is also not included in the list of awards contained on either of his DD Forms 214, both of which he authenticated with his signature on the dates they were issued.  Further, there are no orders or other documents on file in his MPRJ that indicate he was ever recommended for or awarded the CIB by proper authority while serving in the RVN.  As a result, the regulatory criteria necessary to support award of the CIB has not been satisfied in this case.

5.  Finally, there is no indication that the applicant ever raised the CIB issue in the more than 2 years he continued serving on active duty subsequent to his return from the RVN or at the time of his REFRAD.  As a result, it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to award the applicant the CIB at this late date based on an unofficial news article which fails to satisfy the regulatory burden of proof necessary to support a conclusion of error or injustice by the Board.

6.  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 or that would support amendment of the original decision in this case.


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 to amend the decision of the ABCMR set forth in Docket Number AR20080007774, dated 21 October 2008.



      ___________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)                                         AR20090006360



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ABCMR Record of Proceedings (cont)                                         AR20090006360



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