BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090011576 


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) and Army Good Conduct Medal (AGCM).

2.  The applicant states, in effect, that while serving in the Republic of Vietnam (RVN), he was assigned to the 11th Aviation Brigade and believes he should have been awarded the CIB, but the award was overlooked.  He further states that he believes he earned the AGCM.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a report of eligibility for display of recognitions and replacement medals 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 enlisted in the Regular Army (RA) and entered active duty on 21 October 1964.  His record shows he was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman) and that specialist four (SP4)/E-4 is the highest rank/grade he attained while serving on active duty.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from on or about 13 January 1966 through 26 December 1966.  Item 38 (Record of Assignments) shows that during his RVN tour he was assigned to Headquarters and Headquarters Detachment (HHD), 11th Aviation Battalion, performing duties in MOS 11B as a security guard.

4.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows that during his active duty service he earned the National Defense Service Medal (NDSM), RVN Campaign Medal, Vietnam Service Medal (VSM), and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14).

5.  The applicant's record shows he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 22 March 1967 for failure to go to his appointed place of duty at the time prescribed.

6.  The applicant's official military personnel file is void of any orders or other documents showing he was ever recommended for or awarded the CIB by proper authority while serving on active duty.

7.  On 20 October 1967, the applicant was honorably released from active duty (REFRAD) in the rank/grade of SP4 after completing 3 years of creditable active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows that he earned the NDSM, VSM, RVN Campaign Medal, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  His DA Form 20 shows his conduct and efficiency ratings as all “excellent.”

8.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  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.

9.  Paragraph 9-13 of Army Regulation 600-8-22 contains guidance on the RVN Campaign Medal.  It states, in pertinent part, that this award is authorized to members of the Armed Forces of the United States for qualifying service in the RVN during the period 1 March 1961 through 28 March 1973.  Normal qualifying service included assignment in the RVN for 6 or more months; however, members who served in the RVN for less than 6 months who were wounded in action were authorized the award.  The regulation also stipulates that a Device (1960) is worn with this award.

10.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It confirms that during his tenure of assignment in the RVN the applicant's unit (HHD, 11th Aviation Battalion) was awarded the Valorous Unit Award (VUA) and RVN Gallantry Cross with Palm Unit Citation.  It also shows that participation credit was granted for the Vietnam Counteroffensive Phase I (25 December 1965–30 June 1966) and Vietnam Counteroffensive Phase II (1 July 1966–31 May 1967) campaigns.

11.  Army Regulation 672-5-1 (Awards), in effect at the time of the applicant's REFRAD, provided the Army's awards policy, including the criteria for the AGCM. 
It stated, in pertinent part, that in order for a member to be eligible for the AGCM, he or she must have received all "excellent" conduct and efficiency ratings and must not have been convicted by a court-martial during the qualifying period.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have received the AGCM was carefully considered and found to have merit.  The applicant's record confirms he received "excellent" conduct and efficiency ratings at all of his active duty assignments and his record is void of derogatory information or a unit commander disqualification that would have precluded him from receiving the AGCM.  Therefore, notwithstanding the Article 15 he received, it would be appropriate to award him the first award of the AGCM for his qualifying period of honorable active duty service from 21 October 1964 through 20 October 1967 and to add this award to his record and DD Form 214 at this time.

2.  The applicant's record also confirms that based on his service and campaign participation in the RVN, he is eligible for the RVN Campaign Medal with Device (1960), VUA, RVN Gallantry Cross with Palm Unit Citation and two bronze service stars for wear with his VSM.  Therefore, it would also be appropriate to add these awards to his record and DD Form 214 at this time.

3.  The applicant's contention that he is eligible for the CIB was also carefully considered.  However, by regulation, in order to support award of the CIB there must be evidence not only that a member held and served in an infantry MOS, but also 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.

4.  In this case, there is no evidence indicating the applicant was ever recommended for or awarded the CIB by proper authority while serving in the RVN.  Further, although the applicant held and served in an infantry MOS in the RVN, he served in an aviation unit, which was not a qualifying infantry unit.  Therefore, the regulatory burden of proof necessary to support award of the CIB has not been satisfied in this case and as a result it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to grant this portion of the requested relief.

5.  The applicant and all others concerned should know that this action related to award of the CIB 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 

___x_____  ___x_____  ___x__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  awarding him the AGCM for his qualifying period of honorable active duty service from 21 October 1964 through 20 October 1967;

	b.  amending item 24 of his DD Form 214 by adding the AGCM, RVN Campaign Medal with Device (1960), VUA, RVN Gallantry Cross with Palm Unit Citation, and two bronze service stars with his VSM; and

	c.  providing him a correction to his DD Form 214 that reflects these changes.
2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the CIB.



      ____________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)                                         AR20090011576



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ABCMR Record of Proceedings (cont)                                         AR20090011576



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