IN THE CASE OF:	

		BOARD DATE:	  08 April 2010

		DOCKET NUMBER:  AR20090015042 


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 that his records be corrected awarding him the Combat Infantryman Badge and showing he served in the military occupational specialty (MOS) 11B (light weapons infantryman).

2.  The applicant states he changed his MOS in January 1970 in order to remain with Company D, 2nd Airborne Battalion, 503rd Infantry Regiment, 173rd Airborne Brigade, and participated in nine combat assaults and seven fire fights.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); U.S. Army Reserve Components Personnel and Administration Center Letter Orders Number 10-396612; one page of a letter from H____ J. C____, PhD, of the Clinical/Counseling Psychology; a letter from the Disabled American Veterans (DAV); a DAV membership card; a Department of Veterans Affairs (VA) identification card (ID); a Department of Defense ID card; a 173rd Airborne Brigade Association membership card; three excerpts from the Vietnam Veterans Memorial The Wall-USA web site; and an online description of the Combat Infantryman Badge requirements.

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 26 July 1968.  He initially started training as a radio operator, but had to retrain due to hearing problems.  He completed training as a 94B (cook) and basic airborne training.

3.  Headquarters, 173rd Airborne Brigade, Special Orders Number 41, dated 10 February 1970, awarded the applicant the secondary MOS 11B2P effective 24 January 1970.

4.  The applicant was released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) on 16 July 1970.

5.  His DD Form 214 provides the following pertinent information:

	a.  advancement to specialist four (E-4) effective 13 November 1969;

	b.  his last duty assignment as Headquarters and Headquarters Company, 2nd Battalion (Airborne), 503rd Infantry Regiment, Vietnam;

	c.  net service of 1 year, 11 months, and 21 days with 10 months and 28 days of foreign service in Vietnam;

	d.  his MOS is listed as 94B2P (cook);

	e.  award of the National Defense Service Medal, the Parachutist Badge, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Bronze Star Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14); and

	f.  service in Vietnam from 18 August 1969 through 16 July 1970; 

6.  The applicant's DA Form 20 (Enlisted Qualification Record) provides the following pertinent information:

	a.  award of primary MOS 94B effective 24 January 1969;
	b.  award of secondary MOS 11B effective 10 February 1970;

	c.  designation of the MOS 11B2P as his primary MOS and 94B2P as his secondary MOS effective 19 October 1972;

	d.  service in Vietnam from 18 August 1969 through 18 July 1970;

	e.  assignment in Vietnam to Headquarters and Headquarters Company, 2nd Battalion (Airborne), 503rd Infantry Regiment, 173rd Airborne Brigade as a 94B2P (Cook) from 22 August 1969 through 16 July 1970; and

	f.  award of the National Defense Service Medal, the Parachutist Badge, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Bronze Star Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bars (M-14 and M-16).

7.  U.S. Army Reserve Components Personnel and Administration Center Letter Orders Number 10-396612, dated 18 October 1972, converted the applicant's primary MOS to 11B2P and his secondary MOS to 94B2P effective 18 October 1972.

8.  The applicant provides excerpts from the Vietnam Veterans Memorial web site on four Soldiers whom he contends he served with.  This information is nonspecific and does not relate to the applicant.

9.  The letter from the DAV and the applicant's ID cards show he is in receipt of a 100-percent disability rating from the VA.

10.  U.S. Army Vietnam Regulation 672-1 (Awards and Decorations) specifically governed award of the Combat Infantryman Badge to Army forces operating in South Vietnam.  This regulation specifically stated the Combat Infantryman Badge was authorized for award to infantry officers and to enlisted and warrant officer persons who have an infantry military occupational specialty and required that they must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental, or smaller size.  Appendix V of this regulation 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.

11.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It establishes 
standardized policy for preparing and distributing the DD Form 214.  As then in effect, it stated that an enlisted Soldier's most recent five character primary specialty and title was to be entered in item 23a of the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he changed his MOS in January 1970 in order to remain with Company D, 2nd Airborne Battalion, 503rd Infantry Regiment, 173rd Airborne Brigade, and participated in nine combat assaults and seven fire fights.

2.  While the applicant was awarded MOS 11B in January 1970, his records show it was not made his primary MOS until October 1972, over 2 years after the issuance of his DD Form 214.  Therefore, it is not appropriate to correct the DD Form 214 to show this MOS.

3.  The applicant's contention that he is entitled to the Combat Infantryman Badge was carefully considered.  However, there is insufficient evidence to support this claim.  By regulation, in order to qualify for the Combat Infantryman Badge a member must not only hold an infantry MOS and serve with a qualifying infantry unit, there must also be evidence that he was personally present with the qualifying infantry unit when it was engaged in active ground combat and that he actively participated in such ground combat.  Holding an infantry MOS, being assigned to a qualifying unit, and receiving campaign or battle credit are not sufficient to support award of the Combat Infantryman Badge.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090015042



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ABCMR Record of Proceedings (cont)                                         AR20090015042



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