IN THE CASE OF:	  

		BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090009663 


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, in effect, award of the Combat Infantryman Badge (CIB) and correction of item 12 (Last Duty Assignment and Major Command) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states, in effect, he was awarded the CIB in the Republic of Vietnam (RVN) which should be added to his DD Form 214 and that the unit listed in item 12 is incorrect and should be the 538th Engineer Company, 299th Engineer Battalion.
 
3.  The applicant provides copies of a DD Form 214, a unit internet document, and a photograph 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 record shows he was inducted into the Army of the United States and entered active duty on 11 March 1971.  He was trained in and awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist/
Armorer) and the highest rank he attained while serving on active duty was specialist four.

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 4 August 1971 through 8 April 1972.  Item 38 (Record of Assignments) shows that during his RVN tour he was assigned to the 538th Engineer Company from 11 August 1971 through 19 December 1971 and to Company D, 92nd Engineer Battalion, from 20 December 1971 through 7 April 1972.  In both units he performed duties in MOS 76A as a supply clerk.  Item 41 (Awards and Decorations) does not include the CIB in the list of earned awards entered.

4.  The applicant's record is void of any orders or other documents that indicate he was ever recommended for or awarded the CIB by proper authority while serving on active duty.

5.  On 11 April 1972, the applicant was honorably released from active duty (REFRAD).  The DD Form 214 he was issued upon his REFRAD shows that he completed 1 year, 1 month, and 1 day of active military service.  Item 12 shows the applicant's last duty assignment as Company D, 92nd Engineer Battalion.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows he earned the National Defense Service Medal, Vietnam Service Medal, RVN Campaign Medal with Device (1960), and Marksman Marksmanship Qualification Badge with Rifle Bar. 
The CIB is not included in the list of awards contained in item 24.

6.  The applicant provides unit history documents for the 538th Engineer Battalion and a photograph showing him sitting on a vehicle identified as a 538th Engineer Battalion vehicle.

7.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Chapter 8 of this regulation contains guidance on award of combat badges and states, in pertinent part, that the CIB is awarded to enlisted personnel who held and served in an infantry MOS in an infantry unit of brigade, regimental, or smaller size, and who were present with their qualifying infantry unit while it was engaged in active ground combat with enemy forces.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards), appendix V, indicated the CIB was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11F, 11G, or 11H.

8.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  The version of the regulation in effect at the time of the applicant's REFRAD provided for entering the member's unit assignment at the time of separation and the major command having jurisdiction over the organization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he is entitled to the CIB was carefully considered.  However, by regulation, 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 present and participated with his qualifying infantry unit while it was engaged in active ground combat with enemy forces.  Combat service alone did not support award of the CIB.

2.  The evidence of record in this case confirms that the applicant held and served in MOS 76A as a supply clerk in engineer units while serving in the RVN. 
There is no evidence that he ever held and/or served in an infantry MOS in a qualifying infantry unit while serving in the RVN.  Item 38 of his DA Form 20 confirms that during his RVN tour, he served with two engineer units performing duties in MOS 76A as a supply clerk.  As a result, given the applicant did not hold or serve in an infantry MOS and/or in a qualifying infantry unit, the regulatory criteria necessary to support award of the CIB has not been satisfied in this case.

3.  The applicant's contention that item 12 of his DD Form 214 should list the 538th Engineer Battalion was also carefully considered.  However, item 38 of his DA Form 20 confirms his last unit of assignment was Company D, 92nd Engineer Battalion, which is the unit listed in item 12 of his DD Form 214.  Therefore, there is no evidence of an error or injustice related to this entry.  As a result, there is also an insufficient evidentiary basis to support granting this portion of the requested relief.

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.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20090009663



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ABCMR Record of Proceedings (cont)                                         AR20090009663



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