IN THE CASE OF:	  

		BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090012439 


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 and the appropriate number of Air Medals. 

2.  The applicant states that during his service in Vietnam, he was always attached to either an infantry company as a forward observer or to a division as an air observer.  He adds that the paperwork was not completed for the requested awards. 

3.  The applicant provides copies of his DA Forms 67-6 (U.S. Army Officer Efficiency Report) for the periods 28 May 1970 through 20 September 1970, 21 September 1970 through 15 March 1971, and 16 March 1971 through 25 June 1971, in support of his request.

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 enlisted in the Regular Army for a period of 3 years on 9 July 1969.  He completed basic combat and advanced individual training and was awarded MOS 12A (Pioneer).  He was honorably discharged on 27 May 1970 in the rank of specialist five/E-5 for the purpose of accepting a commission as an Army officer.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed 
10 months and 19 days of creditable active service.

3.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 shows he was awarded the National Defense Service Medal, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and the First Class Marksmanship Qualification Badge with Grenade Bar.

4.  The applicant's records further show he was appointed as a Field Artillery (FA) second lieutenant in the U.S. Army Reserve (USAR) with concurrent call to active duty and executed an oath of office on 28 May 1970.  He subsequently completed the FA Unit Command Course and was promoted to first lieutenant (1LT) on 28 May 1971.  

5.  The applicant's records further show that he served in the Republic of Vietnam from on or about 1 July 1970 to on or about 30 June 1971.  He was assigned as follows:

	a.  He was assigned to Battery C, 3rd Battalion, 82nd Artillery, Americal Division, as a forward observer from on or about 16 July 1970 to on or about 6 October 1970 and as an air observer from on or 6 October 1970 to on or about 16 March 1971; and 

	b.  He was assigned to Headquarters, Division Artillery, 23rd Infantry Division, as an air observer from on or about 16 March 1971 to 26 June 1971.

6.  He was honorably released from active duty in the rank of 1LT on 27 January 1972 and transferred to the USAR Control Group (Annual Training) for completion of his Reserve obligation.  Item 24 of his DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Bronze Star Medal, two overseas service bars, and the Vietnam Campaign Medal with Device (1960).  Item 24 does not show award of the Combat Infantryman Badge or the Air Medal.
7.  The applicant's records do not contain official orders awarding him the Combat Infantryman Badge.

8.  The applicant submitted copies of his Officer Efficiency Reports (OER's) for the periods 28 May 1970 through 20 September 1970, 21 September 1970 through 15 March 1971, and 16 March 1971 through 25 June 1971.  These OER's essentially show he performed FA duties as a forward observer and/or air observer in support of various infantry, air cavalry, and artillery units.

9.  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 MOS.  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental, or smaller size. 

10.  Headquarters, 23rd Infantry Division, General Orders Number 7048, dated 23 June 1971, show the applicant was awarded the Air Medal for meritorious achievement while participating in aerial flight from 4 October 1970 to 28 June 1971.

11.  Headquarters, 23rd Infantry Division, General Orders Number 7030, dated 22 June 1971, show the applicant was awarded the Air Medal (2nd through 24th Award) for meritorious achievement while participating in aerial flight from 4 October 1970 to 28 June 1971.

12.  Review of the applicant's records indicates his entitlement to additional awards which are not shown on his DD Form 214.

13.  Headquarters, 23rd Infantry Division, General Orders Number 15317, dated 22 November 1970, show the applicant was awarded the Bronze Star Medal for meritorious achievement in connection with military operations against a hostile force in the Republic of Vietnam from 1 July 1970 to 31 October 1970.

14.  Headquarters, 23rd Infantry Division, General Orders Number 7000, dated 22 June 1971, show the applicant was awarded a second award of the Bronze Star Medal for meritorious service in connection with military operations against a hostile force in the Republic of Vietnam from 1 July 1970 to 31 May 1971.

15.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows during his assignment to the 3rd Battalion, 82nd Artillery, his unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 8, dated 1974.
16.  Appendix B of Army Regulation 600-8-22 shows the applicant participated in the Vietnam Counteroffensive, Phase VII Campaign from 1 July 1970 to 30 June 1971 and the Consolidation I Campaign from 1 July 1971 to 30 November 1971, during his tour of duty in the Republic of Vietnam.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

DISCUSSION AND CONCLUSIONS:

1.  General orders awarded the applicant the Air Medal (2nd through 24th Award) for meritorious achievement while participating in aerial flight in the Republic of Vietnam which is not shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show these medals. 

2.  General orders awarded the applicant two awards of the Bronze Star Medal for meritorious service/achievement in connection with military operations against a hostile force in the Republic of Vietnam, one of which is not shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show two awards of the Bronze Star Medal.

3.  General orders awarded the applicant’s unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation which is not shown on his DD Form 214.  Therefore, he is entitled to correction of his DD Form 214 to show this unit award.

4.  The evidence of record shows the applicant was awarded the Vietnam Service Medal.  Additionally, his records show he participated in two campaigns while serving in the Republic of Vietnam.  Therefore, he is entitled to correction of his DD Form 214 to show award of two bronze service stars to be affixed to his Vietnam Service Medal.

5.  The fact that the applicant served in the Republic of Vietnam and that he supported the infantry and other units is not in question.  However, there is no evidence in the available records and the applicant did not submit substantiating evidence that shows he held an infantry MOS, that he was assigned or attached to an infantry unit, and that he actively participated in ground combat with that infantry unit.  In the absence of such evidence, he has not sufficiently established that he is eligible for award of the Combat Infantryman Badge in this case.






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.  deleting the entry "Bronze Star Medal" from item 24 of his DD Form 214 issued on 27 January 1972; and 

	b.  adding to his DD Form 214 issued on 27 January 1972 the Bronze Star Medal (1st Oak Leaf Cluster), , the Air Medal (2nd through 24th Award), the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and two bronze service stars to be worn on his already-awarded Vietnam Service Medal.

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 Combat Infantryman Badge.



      _______ _   _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)                                         AR20090012439



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090012439



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1