IN THE CASE OF:	  

		BOARD DATE:	  4 February 2010

		DOCKET NUMBER:  AR20090009322 


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 that he be awarded the Combat Infantryman Badge.

2.  The applicant states that he carried the company radio for his company commander for the year he was in Vietnam.  He was on every mission the company went on and should have been awarded the Combat Infantryman Badge.

3.  The applicant provides copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods 9 November 1965 to 16 July 1968 and 17 July 1968 to 28 April 1972; a 2-page undated self-authored letter; a third-party letter which appears to be dated 26 March 2009 and an undated and unsigned third-party letter; two pages of information related to operations of the 4th Battalion, 9th Infantry "Manchus"; a 4-page article from an unofficial 9th Infantry Division website titled, "The Horseshoe"; and an unsigned self-authored letter, dated 10 April 2009, addressed to the Department of Veterans Affairs 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 military records show that he enlisted in the Regular Army on 9 November 1965.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 36A (Wireman).  He was later awarded MOS 36K (Field Wireman).  After serving his initial permanent duty assignment at Fort Bragg, North Carolina, he departed for the Republic of Vietnam on 24 October 1966 and was assigned to Company A, 4th Battalion, 9th Infantry Regiment, first as a Field Wireman in duty MOS 36K and later as a Senior Wireman in duty MOS 36K.  He returned to the continental United States on 22 October 1967 and served at Fort Rucker, Alabama.  He next served in Germany from 1 April 1969 to 11 February 1972, then was assigned at Fort Sill, Oklahoma, until he was honorably discharged on 28 April 1972.

3.  The applicant's military records do not show that he was awarded the Combat Infantryman Badge and there are no special orders awarding him the Combat Infantryman Badge in his military records.  His military records also do not show that he served in an infantry MOS or in MOS 05B (Radio Operator/Radio Operator Supervisor) during his assignment with Company A, 4th Battalion, 9th Infantry Regiment, in Vietnam.

4.  The applicant provided a third-party letter which appears to be dated 26 March 2009 from a person who claims to have been the applicant's company commander from September 1967 until the applicant departed Vietnam the following month.  The author of this letter stated their battalion went on a 56-day combined land-clearing and search/destroy operation 2 days after he assumed command and they endured daily contact with the enemy during that period.  He further stated the applicant was by his side acting in the capacity of a combat infantryman carrying his radios.  He essentially declared that the applicant served as a combat infantryman during his entire year in Vietnam.  The applicant also provided another third-party letter that is neither authenticated with a signature nor dated which essentially stated the applicant deserves and has earned the Combat Infantryman Badge.

5.  Paragraph 8-6 of Army Regulation 600-8-22 (Military Awards) provides for award of the Combat Infantryman Badge.  This paragraph states that there are basically three requirements for award of the Combat Infantryman Badge.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.  Specific requirements state, in effect, that an Army enlisted Soldier must have an infantry MOS and have satisfactorily performed duty while assigned or attached as a member of an infantry unit of brigade, regimental, or smaller size during any period such unit was engaged in active ground combat.  A Soldier must be personally present and under hostile fire while serving in an assigned infantry primary duty in a unit actively engaged in ground combat with the enemy.

6.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards), then in effect, provided that radio/telephone operators, MOS 05B, are only entitled to the Combat Infantryman Badge if their primary duty was to accompany infantry or infantry-type units on tactical operations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Combat Infantryman Badge.

2.  The applicant's claim to entitlement to the Combat Infantryman Badge was carefully considered, as was the evidence he provided.  However, by regulation, in order to receive the Combat Infantryman Badge, a Soldier must have held an infantry MOS, served in a qualifying infantry unit, and been personally present and have participated in active ground combat with the qualifying infantry unit.

3.  U.S. Army Vietnam Regulation 672-1 provided for award of the Combat Infantryman Badge to Soldiers with MOS 05B and whose primary duty was to accompany infantry or infantry-type units on tactical operations.  The applicant's military records clearly show that both his primary MOS and his duty MOS while serving in Vietnam were 36K, not 05B.  As a result, the evidence provided by the applicant nearly more than 40 years after the fact does not approach the threshold of proving by a preponderance of the evidence that an error in injustice occurred.

4.  Although the sincerity of the applicant's claim that he participated in missions with a qualifying infantry unit is not in question, the evidence of record confirms that while serving in the Republic of Vietnam, he was assigned duties in his primary MOS 36K, which is a non-infantry MOS.  Therefore, even had he performed the combat duties as described in the evidence he provided, he still would not have met the regulatory criteria necessary for award of the Combat Infantryman Badge.  Therefore, the regulatory burden of proof necessary to support award of the Combat Infantryman Badge has not been satisfied in this case and there is an insufficient evidentiary basis to support granting the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x____  ____x____  ___x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his honorable service in arms.



      ____________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)                                         AR20090009322



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ABCMR Record of Proceedings (cont)                                         AR20090009322



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