IN THE CASE OF:	  

		BOARD DATE:	  15 September 2009

		DOCKET NUMBER:  AR20090007374 


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).

2.  The applicant states that he was recommended for and was awarded the Bronze Star Medal with "V" Device for his heroic action on 18 November 1967 and that as an infantryman assigned to an infantry unit in the Republic of Vietnam, he should have received the CIB.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge/Certificate of Release or Discharge from Active Duty), dated 26 November 1970 and 31 October 1980; a copy of a USARV Form 157-R (Recommendation for Decoration for Valor or Merit), dated 29 November 1967; a copy of page 1 of his 4-page DA Form 2-1 (Personnel Qualification Record); and a copy of a certificate, dated 18 October 1976, showing award of the Bronze Star Medal with "V" Device, 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 records show he initially enlisted in the Regular Army (RA) for a period of 3 years on 20 November 1957.  He was honorably discharged on 8 June 1958 for the purpose of immediate reenlistment.  A copy of his DD Form 214 is not available for review with this case.

3.  He subsequently executed a 4-year reenlistment in the RA on 9 June 1958.  Item 32 (Prior Service) of his DD Form 4 (Enlistment Record) shows that on the date of his discharge for the purpose of reenlistment, he held military occupational specialty (MOS) 111.07 (Infantryman) and was assigned to Company D, 1st Battalion, 502nd Infantry.  He was again discharged on 7 September 1961 for the purpose of immediate reenlistment.

4.  The applicant’s records also show he executed a 6-year reenlistment in the RA on 8 September 1961.  Item 32 of his DD Form 4 shows that on the date of his discharge for the purpose of reenlistment, he held MOS 841.10 (Cook) and was assigned to Headquarters Company, 12th Engineer Battalion.  He was again discharged on 11 April 1966 for the purpose of immediate reenlistment.

5.  The applicant’s records further show he executed a 6-year reenlistment in the RA on 12 April 1966.  Item 32 of his DD Form 4 shows that on the date of his discharge for the purpose of reenlistment, he held MOS 94B (Cook).  

6.  The applicant’s records also show he served in the Republic of Vietnam from April 1967 to November 1968.   His DA Form 20 (Enlisted Qualification Record) is not available for review with this case.

7.  On 29 November 1967, the applicant’s platoon leader submitted a USARV Form 157-R recommending the applicant for award of the Bronze Star Medal with "V" Device.  This form shows the applicant’s branch as "11B" and his unit of assignment as "Company E, 2nd Battalion, 60th Infantry."  The narrative description cited the following action:

[Applicant] volunteered to go on a mission to retrieve the body of a U.S. Soldier.  Fully understanding that he would be subject to come under hostile enemy fire, he ventured out to get his dead companion.  Immediately, he had to duck their automatic fire, crawling on his hands and knees to get there.  He had to stop now and then because of the intensity of the fire.  But he did accomplish the mission and without regard to his own life, he brought back the fallen Soldier.

8.  Headquarters, 9th Infantry Division, General Orders Number 5966, dated 25 May 1969, show the applicant was awarded the Bronze Star Medal with "V" Device for heroism in connection with military actions involving conflict with an armed hostile force in the Republic of Vietnam on 18 November 1967. 

9.  The applicant was honorably discharged on 26 November 1970.  The DD Form 214 he was issued shows the following entries: 

	a.  item 23a (Specialty Number) shows he held MOS 94B; and 

	b.  item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Good Conduct Medal (1st Award), the Republic of Vietnam Campaign Medal with Device (1960), the Vietnam Service Medal with bronze service star.  Item 24 does not show award of the CIB. 

10.  On 27 November 1970, the applicant executed a 6-year reenlistment in the RA.  He subsequently completed a second period of service in the Republic of Vietnam from on or about 9 February 1971 to on or about 22 January 1972.  He was assigned to Company C, 31st Engineer Battalion.

11.  On 21 December 1971, U.S. Army Engineer Command, Vietnam, published General Orders Number 2109, awarding the applicant the Bronze Star Medal for meritorious service from 12 February 1971 to 21 January 1972.  The orders listed his MOS as 94B.

12.  On 18 October 1976, the applicant was issued a duplicate certificate that shows he was awarded the Bronze Star Medal with "V" Device for his actions on 18 November 1967.  

13.  The applicant was honorably released from active duty on 31 October 1980 and placed on the retired list in his retired rank of sergeant first class on 1 November 1980.  He was credited with completing 22 years, 11 months, and 11 days of creditable active service.

14.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214, dated 31 October 1980, shows he was awarded the Bronze Star Medal (1st Oak Leaf Cluster) and "V" Device, the Meritorious Service Medal, the Army Commendation Medal, the Good Conduct Medal (4th Award), the National Defense Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Vietnam Service Medal, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Item 24 does not show award of the CIB. 

15.  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 military occupational specialty (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 USARV 672-1 provides 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the CIB.  

2.  The evidence of record shows that upon discharge from the RA on 7 September 1961 and subsequent to reenlistment, on 8 September 1961, the applicant held a food service specialty or cook MOS and it appears that he served in that MOS throughout the duration of this reenlistment.  The evidence of record further shows that upon discharge from the RA on 11 April 1966 and subsequent to his reenlistment on 12 April 1966, he again held a food service MOS.  Furthermore, upon discharge, on 26 November 1970, his DD Form 214 shows his MOS as 94B.  

3.  The applicant's records show he served with Company E, 2nd Battalion, 60th Infantry in the Republic of Vietnam.  Neither his infantry unit of assignment nor his service in the Republic of Vietnam is in question.  Additionally, his heroic actions on 18 November 1967 are also not in question.  However, the CIB is not an award for being shot at or for undergoing the hazards of day to day combat.

4.  The CIB is awarded to infantry officers and to enlisted and warrant officer persons who served in an infantry MOS while engaged in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  In the applicant’s case, there is insufficient evidence that shows he held an infantry MOS during his service in the Republic of Vietnam.  All of his records indicate he held a food service MOS.  Therefore, the available evidence is insufficient to show he conclusively met the full criteria for award of the CIB.  Absence such evidence, there is insufficient justification upon which to base award of the CIB 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 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)                                         AR20090007374



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ABCMR Record of Proceedings (cont)                                         AR20090007374



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