IN THE CASE OF:	  

		BOARD DATE:	    14 January 2010

		DOCKET NUMBER:  AR20090013345 


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 the Air Medal (AM).

2.  The applicant states, in effect, he participated in combat and in 25 air assault missions but he was never awarded the CIB or the AM.  He states he wore the CIB in the 82nd Airborne Division after his tour in the Republic of Vietnam (RVN) and it was never questioned; however, it was not added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

3.  The applicant provides a self-authored statement and his DA Form 20 (Enlisted Qualification Record) 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) on 26 June 1968.  He was trained in and awarded military occupational specialty (MOS) 11B (light weapons infantryman). The highest rank/grade he attained while on active duty was sergeant (SGT)/E5.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 29 April 1969 through 30 March 1970.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to the following units for the periods indicated:  Company G, 75th Infantry (Ranger) Regiment, from 8 to 27 May 1969; Company B, 5th Battalion, 46th Infantry Regiment, 198th Light Infantry Brigade, from 28 May through 2 December 1969; and A Battery, 3rd Battalion, 18th Artillery Regiment, from 3 December 1969 to 30 March 1970.  In his first two units, he performed duties in MOS 11B as a scout observer and in the last unit, he performed duties in MOS 13A (Field Artillery) as a cannoneer.  Item 41 (Awards and Decorations) shows he earned the National Defense Service Medal (NDSM), Parachutist Badge, Republic of Vietnam Campaign Medal (RVNCM) with Device (1960), Army Commendation Medal (ARCOM), Vietnam Service Medal (VSM), and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  The applicant's Official Military Personnel File (OMPF) is void of flight records, orders, or other documents that confirm his participation in combat as an infantryman and/or his participation in air assault missions.

5.  On 25 June 1971, the applicant was honorably released from active duty after completing a total of 3 years of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows he earned the NDSM, Parachutist Badge, RVNCM with Device (1960), ARCOM, and VSM.

6.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for the CIB or the AM pertaining to the applicant.

7.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 3-15 contains guidance on the AM and states, in pertinent part, that it is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  This award is primarily intended for personnel on flying status, but may also be awarded to those personnel whose combat duties require them to fly, for 
example personnel in the attack elements of units involved in air-land assaults against an armed enemy.  A formal recommendation, approval through the chain of command, and announcement in orders are required.

8.  Chapter 8 of the award regulations contains guidance on award of combat badges.  It states, in pertinent part, that there are three basic requirements for the CIB.  These requirements are that the member hold and serve in an infantry MOS; that he be assigned to an infantry unit of brigade, regimental, or smaller size; and that he be personally present and participate with his qualifying infantry unit while it is engaged in active ground combat with enemy forces.  Combat service alone does not qualify a member for the CIB.

9.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided local USARV awards policy.  It also established guidelines for award of the AM in the RVN.  It defined terms and provided guidelines for the award based upon the number and types of missions or hours.  It states, in pertinent part, that Category I missions required accrual of 25 hours of flight time to support award of the AM.  Category II missions required accrual of 50 hours of flight time for the AM and Category III missions required accrual of 100 hours of flight time for the AM.  The regulation also stipulated that flight records would be maintained to document the category of missions and flight hours accrued by members on flight crew and non-crew status.  \

10.  Title 10, U.S. Code, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.  

11.  The award request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to the Secretary of the Army at the following agency:  U.S. Army Human Resources Command, Personnel Service Support Division, 200 Stovall Street, Room 3S67, Alexandria, VA  22332-0405.  The applicant's unit must be clearly identified, along with the period of assignment and the award being recommended.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests for consideration of awards should be supported by sworn 
affidavits, eyewitness statements, certificates, and related documents.  Corroborating evidence is best provided by commanders, leaders and fellow Soldiers who had personal knowledge of the circumstances and events relative to the request.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is eligible for and should have been awarded the CIB and AM was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  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 in a qualifying infantry unit, but also that he was personally present and participated with a qualifying infantry unit while it was engaged in active ground combat with enemy forces.

3.  The evidence of record and the independent evidence provided by the applicant fail to show he was eligible for, recommended for, or awarded either the CIB or AM while serving on active duty.  These awards are not included in the list of awards contained in item 41 of his DA Form 20 or on his DD Form 214.

4.  The applicant's record shows he served in an infantry MOS and in qualifying infantry units only for a portion of his RVN tour, and the remaining time was served in an artillery MOS in an artillery unit.  Further, there is no evidence confirming his personal presence and participation with either of his qualifying infantry units while they were engaged in active ground combat with enemy forces, which is required by regulation to support award of the CIB.  As a result, the regulatory burden of proof necessary to support award of the CIB has not been satisfied in this case.

5.  The evidence of record is also void of any documents or entries that confirm the applicant's participation in aerial flight or air assault missions and/or of flight records confirming his eligibility for the AM.  Absent any evidence of record or independent evidence provided by the applicant that supports his contention he was eligible to be awarded the AM, there is also an insufficient evidentiary basis to support granting this portion of the requested relief.

6.  While there is insufficient documentation and evidence to award the applicant the AM, this in no way affects the applicant’s right to pursue his claim for award of these awards by submitting a request, with an award recommendation and 

supporting evidence, through a Member of Congress under the provisions of Title 10, U.S. Code, section 1130, as outlined in paragraphs 13 and 14 of the Consideration of Evidence portion of this document.

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)                                         AR20090013345



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ABCMR Record of Proceedings (cont)                                         AR20090013345



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