BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090010879 


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, that he be awarded the Combat Medical Badge.    

2.  The applicant states, in effect, that he would like a review completed to determine if he is eligible for the CMB.  

3.  The applicant provides no documentary evidence 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 and entered active duty on 16 April 1970.  
3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows, in item 22 (Military Occupational Specialties), that he was awarded military occupational specialty (MOS) 91A (Medical Corpsman) on 12 February 1971, and MOS 91B (Medical Specialist) on 18 May 1971.  Item 38 (Record of Assignments) shows he served in the Republic of Vietnam (RVN) from on or about 9 April 1971 through 3 January 1972.  Item 33 (Appointments and Reductions) shows he was promoted to the rank of specialist four (SP4) on 18 May 1971 and that this is the highest rank he attained while serving on active duty.  Item 38 shows that while serving in the RVN he was assigned to Headquarters and Headquarters Company (HHC), 1st Battalion, 22nd Infantry Regiment, performing duties in MOS 91A as a radio telephone operator and 91B as a medical specialist, and item 41(Awards and Decorations) shows he earned the National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), 1 Overseas Service Bar, RVN Campaign Medal (RVNCM), and Marksman Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.  

4.  The applicant's Official Military Personnel File (OMPF) contains a packet that confirms on 28 October 1970, the applicant's request for Conscientious Objector (CO) noncombatant status (1-A-O) was approved and it was directed the applicant be assigned and utilized in accordance with paragraph 2-12h(1), 
Army Regulation 600-200.  It is also void of any orders or other documents that indicate the applicant was ever recommended for or awarded the CMB by proper authority during his tenure on active duty.  

5.  On 13 January 1972, the applicant was honorably released from active duty (REFRAD), in the rank of SP4, after completing 1 year, 8 months, and 28 days of active military service.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he earned the following awards during his active duty tenure:  NDSM, Marksman Marksmanship Qualification Badge with Rifle Bar, RVNCM, 1 Overseas Service Bar, and VSM.  The CMB is not included in the list of earned awards.  

6.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, provided the Army policy for the classification and utilization of Army enlisted personnel.  Chapter 2 contained guidance on personnel classification, and paragraph 2-12h (1) provided guidance on action required once a member was classified as a CO.  It stated, in pertinent part, that these members would be utilized in accordance with guidance in paragraph 3-7, which contained guidance on the utilization of CO personnel and stated, in pertinent part, that personnel who were classified 1-A-O would be assigned noncombatant duties.

7.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards policy and chapter 8 contains guidance on award of Badges and Tabs of United States Origin.
8.  Paragraph 8-7 of the same regulation contains guidance on award of the CMB.  It states, in pertinent part, that for RVN service, the CMB may be awarded to Soldiers of the Army Medical Department (Colonels and below), assigned or attached by appropriate orders to an infantry unit of brigade, regimental, or smaller size, or to a medical unit of company or smaller size, organic to an infantry unit of brigade or smaller size, during any period the infantry unit is engaged in actual ground combat on or after 6 December 1941.  Battle participation credit alone is not sufficient; the infantry unit must have been in contact with the enemy.  In the RVN era, a member must have been assigned to an infantry unit of brigade or smaller size, including Special Forces Detachments, and must have been personally present and under hostile fire while assigned as specified.  

DISCUSSION AND CONCLUSIONS:

1.  By regulation, the CMB is authorized to members of the Medical Corps who actually perform their medical duties while assigned to and are present with an qualifying infantry unit of brigade regimental or smaller size while the unit is engaged in active ground combat with enemy forces.  Service with a qualifying unit in a combat zone alone does not support award of the CMB.  

2.  In this case, while it is clear the applicant was assigned to a headquarters element of a qualifying infantry unit and performed duties as a medical specialist, there is no evidence confirming he was actually present and participated with his qualifying infantry unit while it was actually engaged in active ground combat with enemy forces while serving in the RVN.  

3.  Further, the applicant's record shows he was granted 1-A-0 CO status in October 1970, prior to his arrival in the RVN, which would support a conclusion that he was assigned noncombatant duties at the headquarters.  In addition, his record is void of any indication that he was ever recommended for or awarded the CMB by proper authority while serving in the RVN.  As a result, absent any evidence that he was personally present with and participated with his qualifying infantry unit while it was engaged in active ground combat with enemy forces, the regulatory burden of proof necessary to support award of the CMB has not been satisfied in this case. 

4.  The applicant and all others concerned should know that this action related to award of the CMB 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 the RVN.  



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)                                         AR20090010879



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ABCMR Record of Proceedings (cont)                                         AR20090010879


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