IN THE CASE OF:	  

		BOARD DATE:	  4 February 2010

		DOCKET NUMBER:  AR20090013110 


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 his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected by showing his military occupational specialty (MOS) as 11B (Infantryman) in item 23a (Specialty Number and Title) and adding the Combat Infantryman Badge (CIB) to the awards entered in item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized).

2.  The applicant states he served in the field in and around My Lai and on the landing zone (LZ) as a combat infantry Soldier from 2 October 1969 through January 1970.  He has always been an infantry Soldier with MOS 11B; he was never a typist or clerk of any kind.  He would like the CIB as he engaged the enemy in combat both in the field and on LZ Gator and it identifies the kind of duty he had in Vietnam.

3.  The applicant provides no additional 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 of the United States and entered active duty on 24 February 1969.  He completed basic combat training at Fort Bragg, North Carolina, and advanced individual training (AIT) at Fort Dix, New Jersey.

3.  The applicant's DA Form 20 (Enlisted Qualification Record), item 22 (Military Occupational Specialties), shows that upon completion of AIT, he was awarded MOS 11B (Light Weapons Infantryman) on 27 June 1969.  Item 22 of his DA Form 20 also shows he was awarded the primary MOS 71B (Clerk Typist) on 6 June 1970.

4.  Item 31 (Foreign Service) of the applicant's DA Form 20 shows he served in the Republic of Vietnam (RVN) from 1 October 1969 through 30 September 1970.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company B, 5th Battalion, 46th Infantry Regiment, from 15 October 1969 through 19 January 1970 performing duties in MOS 11B as a rifleman and that from 20 January 1970 through 30 September 1970 he was assigned to Headquarters and Headquarters Company, Americal Division, in an excess status.  Item 41 (Awards and Decorations) does not include the CIB in the list of awards entered.

5.  The applicant's official military personnel file (OMPF) contains Headquarters, Americal Division, Special Orders Number 163, dated 12 June 1970, which awarded the applicant primary MOS 71B and withdrew MOS 11B effective 6 June 1970.  The reason listed on the orders for the MOS action was a physical profile.

6.  The applicant's OMPF is void of any orders or other documents that indicate the applicant was ever recommended for or awarded the CIB by proper authority while serving in the RVN.

7.  On 2 October 1970, the applicant was honorably released from active duty (REFRAD) after completing 1 year, 7 months, and 5 days of active military service.  The DD Form 214 he was issued at the time lists his MOS as 71B in item 23a and shows he earned the following awards in item 24:  National Defense Service Medal, Marksman Marksmanship Qualification Badge with Rifle Bar, Vietnam Service Medal, RVN Campaign Medal, and Army Commendation Medal.

8.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Chapter 8 contains guidance on badges and tabs of United States origin. 
Paragraph 8-6 contains guidance on the CIB and states, in pertinent part, that there are three basic requirements for award of the CIB.  The member must be an infantryman satisfactorily performing infantry duties; he must be assigned to an infantry unit of brigade, regimental, or smaller size during such time as the unit is engaged in active ground combat; and he must be present with his qualifying infantry unit and have actively participated in such ground combat.  Combat service or campaign credit alone is not sufficient to award the CIB.

9.  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 instructions for completing item 23a of the version of the regulation in effect at the time of the applicant's discharge stated to enter the primary MOS held on the date of separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that item 23a and item 24 of his DD Form 214 should be corrected by showing he held MOS 11B and that he earned the CIB was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The regulation in effect at the time of the applicant's REFRAD provided for entering the MOS number and title held on the date of separation in item 23a of the DD Form 214.  The applicant's record confirms he was reclassified into and awarded MOS 71B on 6 June 1970 and that this is the MOS he held on the date of his separation.  As a result, there is no error or injustice related to the entry in item 23a of his DD Form 214.

3.  By regulation, in order to support award of the CIB there must not only be evidence the member held and served in an infantry MOS in a qualifying infantry unit, but also that he was personally present and participated with his unit while it was engaged in active ground combat with enemy forces.

4.  In this case, there is no evidence that in the little over 3 months he held an infantry MOS and was assigned to an infantry unit in the RVN, the applicant was personally present and participated with his unit while it was engaged in active ground combat with enemy forces.

5.  Further, 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 in the RVN and this award is not included in the list of awards contained in item 41 of his DA Form 20.  As a result, absent any evidence of his presence and participation in active ground combat with his qualifying infantry unit, the regulatory burden of proof necessary to support award of the CIB has not been satisfied in this case.

6.  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)                                         AR20090013110



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ABCMR Record of Proceedings (cont)                                         AR20090013110



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