IN THE CASE OF:	  

		BOARD DATE:	  1 October 2009

		DOCKET NUMBER:  AR20090007364 


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 and its addition to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

2.  The applicant states, in effect, that he was in a combat zone.  He is a combat veteran with a 50 percent disability due to post traumatic stress disorder.  He was exposed to mortar, rocket, and gun fire.  He also states this injustice was discovered by the Veterans of Foreign Wars representative in a board meeting for appeal with the Department of Veterans Affairs (DVA).

3.  In support of his application, the applicant provides copies of his DD Form 214, a VA Form 21-4138 (DVA – Statement in Support of Claim), and page 3 of a letter pertaining to his DVA claim.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers requests and statements to the applicant and provides no additional evidence in support of the applicant's 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 records show he enlisted in the Regular Army in pay grade 
E-1, on 29 August 1969, for 3 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 76P (Stock Control and Accounting Specialist) on 19 December 1969.  His records do not show he was awarded an infantry MOS during his period of service.  

3.  On 9 June 1970, orders were published assigning the applicant to the 537th Adjutant General Company, Personnel Services, APO, San Francisco, in MOS 76P.  He served in the Republic of Vietnam from 6 June 1970 through 5 June 1971 and performed duties in MOS 76P.  On 23 April 1971, orders were published reassigning him to the US Army Overseas Replacement Station, Fort Dix, New Jersey, for further assignment to the 21st Adjutant General Replacement Battalion, in MOS 76P, with an availability date of 5 June 1971.

4.  The applicant's military records do not contain a DA Form 20 (Enlisted Qualification Record) for his military service.

5.  The applicant was honorably released from active duty, in pay grade E-4, on 1 May 1972, in MOS 76P.  He was transferred to the United States Army Reserve Control Group (Annual Training).  He was credited with 2 years, 6 months, and 3 days of net active service.  

6.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal with one bronze service star, the Republic of Vietnam Campaign Medal, and the Marksman Marksmanship Qualification Badge with Rifle Bar.  The Combat Infantryman Badge is not shown on his DD Form 214.

7.  There are no orders in the applicant’s service personnel records that show he was awarded the Combat Infantryman Badge.  

8.  A search of the Awards and Decorations Computer-assisted Retrieval System (ADCARS) was made for orders awarding the applicant the Combat Infantryman Badge.  No orders for this award were found in the ADCARS.

9.  The applicant submits copies of his VA Form 21-4138 and page 3 of a letter pertaining to his VA claim.  A paragraph in this letter, on this page, indicated that he was stationed at Long Binh and there were mortar and rocket attacks on the base in April and May 1971.  Since these occurred when he was stationed there, there is no information he was not present and therefore, was a participant in combat.

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 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 Republic of Vietnam Regulation 672-1 provided that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11D, 11F, 11G, or 11H.

11.  U.S. Army Vietnam Regulation Number 672-1 (Awards and Decorations) specifically governed award of the Combat Infantryman Badge to Army forces operating in South Vietnam.  This regulation specifically stated that criteria for award of the Combat Infantryman Badge identified the man who trained, lived, and fought as an infantryman and the Combat Infantryman Badge is the unique award established to recognize the infantryman, and only the infantryman, for his service.  Further, “the Combat Infantryman Badge is not an award for being shot at or for undergoing the hazards of day to day combat.”  This regulation also stated the Combat Infantryman Badge was authorized for award to infantry officers and to enlisted and warrant officer persons who have an infantry MOS and required that they must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.

DISCUSSION AND CONCLUSIONS:

1.  To be entitled to award of the Combat Infantryman Badge, the evidence must show that an applicant held and served in an infantry MOS while assigned or attached to an infantry unit of brigade, regimental or smaller size, and must have served in active ground combat while assigned or attached to this infantry unit.

2.  The evidence of record shows he completed training, was awarded, and served in MOS 76P throughout his military service.  There is no evidence, and he has not shown, that he was awarded and/or served in an infantry MOS and was personally present and participated in active ground combat while assigned or attached to an infantry unit during his service in Vietnam.  The evidence also does not confirm he received any awards for valor or achievement that would give an indication he was exposed to active ground combat against the enemy during his period in Vietnam or military service.

3.  All Soldiers were provided basic combat skills training after they entered the Army.  This was provided to ensure that all Soldiers had the survival skills to perform basic infantry missions when the need arose.  Therefore, the exigencies of combat required non-infantry Soldiers to temporarily perform the basic infantry duties that all Soldiers were trained to do; however, it is not a basis for the award of the Combat Infantryman Badge.  Based on the available evidence, the applicant is not entitled to award of the Combat Infantryman Badge and to have it added to his DD Form 214.

4.  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.  

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090007364



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ABCMR Record of Proceedings (cont)                                         AR20090007364



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