IN THE CASE OF:	

		BOARD DATE:	  4 March 2010

		DOCKET NUMBER:  AR20090013490 


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 record and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to reflect the dates of his service in the Republic of Vietnam (RVN) and that he be awarded the Combat Infantryman Badge (CIB).

2.  The applicant states he served in the RVN from 12 January 1969 through 11 January 1970.

3.  The applicant provides a self-authored statement, military personnel records documents, and a Department of Veterans Affairs (VA) Rating Decision 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 26 July 1968.  He was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant's record is void of a DA Form 20 (Enlisted Qualification Record) for the enlistment under review.

4.  The applicant's official military personnel file (OMPF) contains reassignment orders issued by the 101st Airborne Division, RVN, dated 10 December 1969, which show the applicant's Date Eligible to Return from Overseas (DEROS) was 10 January 1970.  These orders further show he was scheduled to report to the replacement detachment for departure from the RVN on 7 January 1970.

5.  The applicant's OMPF also contains an evaluation report and promotion and award orders issued by the 101st Airborne Division, which show he was assigned to Company B, 1st Battalion (Airmobile), 327th Infantry Regiment, performing duties in MOS 11B during his RVN tour of duty.

6.  On 25 July 1970, the applicant was honorably released from active duty in the rank of specialist four after completing 2 years of active military service.  Item 22c (Foreign or Sea Service) of the DD Form 214 he was issued at the time shows he completed 11 months and 27 days of overseas service within the U.S. Army Pacific major command.

7.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he earned the following awards during this period of active duty service:  National Defense Service Medal, Vietnam Service Medal (VSM), Bronze Star Medal, RVN Campaign Medal, Army Good Conduct Medal, Air Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).  Item 30 (Remarks) contains the entry "VN Service:  None."

8.  The applicant's record shows he subsequently served in the U.S. Army Reserve from 26 July 1970 through 22 February 1996, at which time he was transferred to the Retired Reserve in the rank of sergeant first class.

9.  A DA Form 2-1 (Personnel Qualification Record) on file in his OMPF that was prepared on 5 May 1995 shows he served in the RVN from 12 January 1969 through 11 January 1970.  The CIB is not included in the list of awards contained in item 9 (Awards, Decorations, and Campaigns) and the applicant last reviewed the DA Form 2-1 on 6 January 1996.

10.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-13 contains guidance on the VSM and states, in pertinent part, that a bronze service star is authorized with this award for each campaign a member is credited with participating in while serving in the RVN.  Table B-1 contains a list of RVN campaigns and shows that during the applicant's tenure of assignment in the RVN, participation credit was granted for the Vietnam Counteroffensive Phase VI (2 November 1968-22 February 1969), Tet 69 Counteroffensive (23 February 1969-8 June 1969), Vietnam Summer-Fall 1969 (9 June 1969-31 October 1969), and Vietnam Winter-Spring 1970 (1 November 1969-30 April 1970).

11.  Chapter 8 of Army Regulation 600-8-22 contains guidance on badges and tabs of U.S. origin and section II contains guidance on award of combat and special skill badges.  Paragraph 8-6 contains guidance on award of the CIB and states, in pertinent part, that for award of the CIB a Soldier must meet the following three requirements:  (1) be an infantryman satisfactorily performing infantry duties, (2) be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and (3) actively participate in such ground combat.  Combat service alone does not support award of the CIB.

12.  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 shows that during the applicant's tenure of assignment in the RVN, his unit (1st Battalion, 327th Infantry Regiment) earned the RVN Gallantry Cross with Palm Unit Citation and RVN Civil Actions Honor Medal First Class Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to reflect his dates of service in the RVN was carefully considered and found to have merit.

2.  The applicant's record includes orders issued by the 101st Airborne Division in the RVN that confirm his DEROS date was 10 January 1970, which further confirms his arrival date in the RVN would have been 11 January 1969.  His DD Form 214 confirms he completed 11 months and 27 days of overseas service in USARPAC.  Given the other evidence of record, this entry is accepted as confirmation that he served in the RVN, which was a part of USARPAC.  That 

means he departed the RVN on 7 January 1970.  Therefore, it would be appropriate to correct item 30 of his DD Form 214 by deleting the current "VN Service:  None" entry in item 30 and replacing it with the entry "Vietnam Service: 19690111-19700107" which documents his service in the RVN from 11 January 1969 through 7 January 1970.

3.  The applicant's record further shows that based on his RVN service and campaign participation, he is eligible for the RVN Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit Citation, and four bronze service stars with his VSM.  Therefore, it would also be appropriate to add these awards to his record and DD Form 214 as this time.

4.  The applicant's claim that the CIB should be added to the list of awards contained on his DD Form 214 was also carefully considered.  However, by regulation, in order to support award of the CIB there must be evidence not only that the member held and served in an infantry MOS in a qualifying infantry unit, but also that he was present and participated with the qualifying infantry unit while it was engaged in active ground combat with enemy forces.  Combat service alone is not sufficient to support award of the CIB.

5.  In this case, the evidence of record confirms the applicant held an infantry MOS and served in a qualifying infantry unit while serving in the RVN; however, there is no evidence of record or independent evidence provided by the applicant that confirms his personal presence and participation with his qualifying infantry unit while it was engaged in active ground combat with an enemy force.  Further, the CIB is not listed in item 9 of his DA Form 2-1, which he last reviewed on 6 January 1996.

6.  In addition, there is no indication that the applicant pursued award of the CIB in the 7 months he continued to serve on active duty after his departure from the RVN or in the more than 25 years he served in the USAR prior to his transfer to the Retired Reserve in 1996.  As a result, absent any evidence of record confirming he was recommended for or awarded the CIB by proper authority during his active duty tenure or that confirms his personal presence and participation in active ground combat with his unit, the regulatory criteria for award of the CIB has not been met in this case.  Therefore, it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to award the applicant the CIB at this late date.


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 amending his DD Form 214 as follows:

	a.  item 24 - delete the current VSM entry and add the VSM with four bronze service stars, the RVN Gallantry Cross with Palm Unit Citation, and the RVN Civil Actions Honor Medal First Class Unit Citation;

	b.  item 30 - delete the entry "VN Service:  None" and replace it with the entry "Vietnam Service:  19690111-19700107"; and

	c.  by 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 adding the CIB to his DD Form 214.



      _____________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)                                         AR20090013490



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ABCMR Record of Proceedings (cont)                                         AR20090013490



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