BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090013929 


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 the Combat Infantryman Badge (CIB) and all other awards to which he may be entitled be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states, in effect, that awards he earned were omitted from his DD Form 214.

3.  The applicant provides a Department of Veterans Affairs Form 21-4138 (Statement in Support of Claim); an Army Board for Correction of Military Records (ABCMR) letter, dated 22 September 2008; a Douglas County Clerk Certificate Page cover sheet; and his DD Form 214 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 that he was inducted into the Army and entered active duty on 11 August 1970.  He completed basic combat training at Fort Ord, California, and advanced individual training (AIT) at Fort Sill, Oklahoma.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 13A (Field Artillery Basic).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 6 January 1971 through 5 November 1971.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Headquarters and Headquarters Battery, 2nd Battalion, 94th Artillery, from 11 January 1981 through 9 June 1971 and to Service Battery, 8th Battalion, 4th Artillery, from 10 June through 4 November 1971.

4.  Item 38 of the applicant's DA Form 20 also shows he received "excellent" conduct and efficiency ratings at each of his active duty assignments.  His official military personnel file (OMPF) is void of any derogatory information or a unit commander disqualification that would have precluded him from receiving the Army Good Conduct Medal (AGCM).

5.  The applicant's OMPF is void of any orders or other documents indicating he was ever recommended for or awarded the CIB by proper authority while serving on active duty.

6.  The applicant's OMPF contains orders that show his primary MOS 13A was withdrawn and he was awarded primary MOS 71B (clerk-typist) on 27 August 1971.

7.  On 14 February 1972, the applicant was honorably released from active duty after completing a total of 1 year, 6 months, and 4 days of active military service. 
Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued shows he earned the National Defense Service Medal, Vietnam Service Medal (VSM), Army Commendation Medal, RVN Campaign Medal with Device (1960), Sharpshooter Marksmanship Qualification Badge, and two overseas service bars.

8.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-13 contains guidance on award of the VSM and it 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 campaigns and shows that during the applicant's tenure of assignment in the RVN, participation credit was awarded for the Vietnam Counteroffensive Phase VII and Consolidation I campaigns.

9.  Chapter 8 of Army Regulation 600-8-22 contains guidance on award of combat badges.  It states, in pertinent part, that there are three basic requirements for award of the CIB.  The Soldier must hold and serve in an infantry MOS; he must serve in a qualifying infantry unit of brigade, regimental, or smaller size; and he must be personally present and participate with his qualifying infantry unit while it is engaged in active ground combat with enemy forces.  Service in combat alone is not sufficient for award of the CIB.

10.  Chapter 4 of Army Regulation 600-8-22 prescribes the policy for award of the AGCM.  It states, in pertinent part, that the AGCM is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of military service, in which case, a period of more than 1 year is a qualifying period.  Although there is no automatic entitlement to the AGCM, disqualification must be justified.

11.  Department of the Army General Order Number 8, dated 1974, authorized award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to all personnel assigned to the RVN from 8 February 1962 through 28 March 1973.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is eligible for awards not listed on his DD Form 214 was carefully considered and found to have merit.

2.  The evidence of record confirms he received "excellent" conduct and efficiency ratings at all of his active duty assignments.  In addition, his OMPF is void of any derogatory information or a unit commander disqualification that would have precluded him from receiving the AGCM.  As a result, it would be appropriate to award him the first award of the AGCM for his qualifying period of honorable active duty service from 11 August 1970 to 14 February 1972 and to add this award to his record and DD Form 214 at this time.

3.  The evidence of record also confirms that based on his RVN service and campaign participation, the applicant is eligible for the RVN Gallantry Cross with Palm Unit Citation and two bronze service stars with his VSM.  Thus, it would also be appropriate to add these awards to his DD Form 214 at this time.

4.  The applicant's contention that he should be awarded the CIB was also carefully considered.  However, by regulation, in order to support award of the CIB there must be evidence that the member held and served in an infantry MOS; 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.

5.  In this case, the evidence of record confirms the applicant held and served in field artillery and administrative MOS's in artillery units during the tenure of his assignment in the RVN.  Given he never held an infantry MOS and never served in a qualifying infantry unit, the regulatory criteria necessary to support award of the CIB has not been met in this case. Therefore, there is an insufficient evidentiary basis to support granting this portion of the requested relief.

6.  The applicant and all others concerned should know that the 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 awarding him the Army Good Conduct Medal for his qualifying period of honorable active duty service from 11 August 1970 to 14 February 1972; by amending item 24 of the DD Form 214 by adding the Army Good Conduct Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and two bronze service stars with the Vietnam Service Medal; and 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)                                         AR20090013929



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ABCMR Record of Proceedings (cont)                                         AR20090013929



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