IN THE CASE OF:
BOARD DATE: 14 January 2010
DOCKET NUMBER: AR20090013986
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 (CIB) and that his DD Form 214 (Report of Separation or Discharge from Active Duty) be corrected to show that he was a specialist (SPC/E-4) or a sergeant (SGT/E-5).
2. The applicant states, in effect, he was assigned to the 1st Squadron, 7th Cavalry, with a combat unit while he was in the Republic of Vietnam (RVN) and never received his CIB. He also states that his records should be corrected to show that he was a SPC or SGT at the time of his separation from active duty (AD).
3. The applicant submitted his DD Form 214 in support of this 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 enlisted in the Regular Army on 2 December 1969. He completed the required training and was awarded military occupational specialty 13B (Field Artillery Crewman).
3. The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the RVN with Battery B, 1st Battalion, 21st Artillery Regiment, 1st Cavalry Division from 8 June 1968 to 3 June 1969, performing duties in MOS 13B with principal duties as a cannoneer and with Battery A, 3rd Battalion, 18th Artillery Regiment, from 13 February 1971 to 23 November 1971, performing duties in MOS 13B with principal duties as a cannoneer.
4. Headquarters, 23rd Infantry Division, Special Orders Number 157, dated 6 June 1971 show that the applicant was promoted to a SGT with an effective date 27 May 1971.
5. On 24 August 1974, the applicant was found guilty by a special court-martial of four specifications of purchasing 16 bottles of alcohol from 1 December to 20 December 1974 and for one specification of transferring 15 bottles of alcohol to a male Korean national. He was sentenced to a reduction to the rank/grade of specialist/E-4 and a forfeiture of $150.00 per month for 2 months.
6. On 27 August 1974, the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for failure to go at the prescribed time to his appointed place of duty. His punishment included a reduction to the rank of private first class/E-3, forfeiture of $175.00 pay per month for 2 months, and 45 days of restriction.
7. On 15 October 1975, the applicant was honorably discharged in the grade/rank of PFC/E-3. He had completed 5 years, 10 months, and 13 days of active military service. The DD Form 214 he was issued shows that he was awarded the Army Commendation Medal, Good Conduct Medal, National Defense Service Medal, Vietnam Service Medal, RVN Campaign Medal with Device (1960), Vietnam Cross of Gallantry with Palm, and the Sharpshooter Marksmanship Qualification Badge with Machine Gun Bar. The DD Form 214 he was issued does not show award of the CIB.
8. Army Regulation 600-8-22 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. Additionally, appendix V of U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) provides that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11D, 11F, 11G, or 11H.
9. Army Regulation 635-5 prescribes the separation documents that are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for preparing and distributing these separation documents. It states, in effect, that the active duty rank at the time of separation will be entered on the separation document.
DISCUSSION AND CONCLUSIONS:
1. There is no evidence nor did the applicant submit any evidence that shows he held an infantry MOS during any of his assignments in the RVN. Therefore, in the absence of such evidence he is not entitled to award of the CIB.
2. The evidence of record shows that at the time of his separation on 15 October 1975, the applicant held the rank/grade of PFC/E-3. Evidence of record shows although the applicant was appointed to the rank/grade SGT/E-5, he was subsequently reduced by special court martial to the rank/grade of SPC/E-4 and further reduced to the rank/grade of PFC/E-3. Therefore, he in not entitled to correction of his records to show his rank as SPC/ E-4 or SGT/E-5 at the time of his separation.
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) AR20090013986
4
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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