IN THE CASE OF:	  

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090016575 


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 correction of his records to show he was released from active duty (REFRAD) on 3 February 1971.  He also requests award of the Combat Infantryman Badge.

2.  The applicant states he served in Vietnam until 3 February 1971, so the date shown on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) (i.e., 3 February 1970) is obviously in error. He also states he served as an infantryman and was awarded the Bronze Star Medal, but he never received the Combat Infantryman Badge.

3.  The applicant provides, in support of his application, a copy of his DD Form 214.

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 was inducted into the Army of the United States for a period of 2 years on 3 July 1969.  Upon completion of training he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

	a.  item 31 (Foreign Service) he was assigned to the Republic of Vietnam (RVN) on 4 December 1969;

   b.  item 38 (Record of Assignments) that he served in the RVN in:

       (1)  duty MOS 76A1O as a supply clerk while assigned to the
1st Administration Company, 1st Infantry Division, from 14 December 1969 to
7 April 1970; and 

       (2)  duty MOS 71B2O as a clerk typist while assigned to Headquarters and Headquarters Battery, 2nd Battalion, 35th Artillery, and attached to Headquarters and Headquarters Battery, 23rd Artillery Group;

   c.  item 39 (Campaigns) he served in the RVN during an unnamed campaign; and

	d.  item 41 (Awards and Decorations) he was awarded the National Defense Service Medal, Vietnam Service Medal, Bronze Star Medal, 1 Overseas Service Bar, Republic of Vietnam Campaign Medal with Device (1960), Army Good Conduct Medal, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  The applicant's military personnel records do not contain any orders or other evidence showing award of the Combat Infantryman Badge.

5.  Headquarters, U.S. Army Personnel Center, Oakland, CA, Special Orders Number 34, dated 3 February 1971, show the applicant was REFRAD on
3 February 1971.

6.  The applicant's DD Form 214 shows he entered active duty on 3 July 1969, honorably REFRAD on 3 February 1970, and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  This document also shows in:
  
   a.  block 22 (Statement of Service), section a (Creditable for Basic Pay Purposes), item 1 (Net Service This Period) he completed 1 year, 7 months, and 1 day;

   b.  block 22, section c (Foreign and/or Sea Service), he completed 1 year and 2 months;

	c.  block 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Army Good Conduct Medal, and the Bronze Star Medal; and

	d.  block 30 (Remarks) that he served in the RVN from 5 December 1969 to
3 February 1971.

7.  A review of the applicant's military personnel records shows he may be authorized additional awards that are not shown on his DD Form 214.

8.  Headquarters, U.S. Army Training Center, Armor, Fort Knox, KY, Special Orders Number 232, dated 20 August 1969, show the applicant was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

9.  Appendix B of Army Regulation 600-8-22 (Military Awards) lists campaigns for Vietnam.  This document shows that the applicant served in the RVN during the Vietnam Winter-Spring 1970 (1 November 1969 - 30 April 1970), DA Sanctuary Counteroffensive (1 May 1970 - 30 June 1970), and Vietnam Counteroffensive Phase VII (1 July 1970 - 30 June 1971) campaigns.  This regulation also provides for award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal, including the Vietnam Service Medal.

10.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This document shows that at the time of the applicant's assignment to Headquarters and Headquarters Battery, 2nd Battalion, 35th Artillery (RVN), the battalion was cited for award of the:
   
   a.  Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation by Department of the Army General Orders (DAGO) Number 51, dated 1971; and
   
   b.  Republic of Vietnam Gallantry Cross with Palm Unit Citation by DAGO Orders Number 54, dated 1974.
11.  Army Regulation 600-8-22 provides for award of the Combat Infantryman Badge and states that there are basically three requirements for award of the 
Combat Infantryman Badge.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned or attached to an infantry unit of brigade, regimental or smaller size during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.

12.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribes policies and procedures regarding separation documents.  It also establishes standardized policy for preparing and distributing the DD Form 214.  This Army regulation states that the purpose of a separation document is to provide the individual with documentary evidence of their military service at the time of separation.  Therefore, it is important that the information entered thereon is complete and accurate as of that date.

   a.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) provides guidance on the preparation of the DD Form 214.

   b.  All available records will be used as a basis for the preparation of the
DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders.  It states in:
   
(1) paragraph 28 (item 11d) enter date separation is accomplished; and in

	    (2)  paragraph 53 (item 24) list all decorations, service medals, campaign medals, and badges awarded or authorized, omitting authorities cited therein.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was REFRAD on 3 February 1971 and awarded the Combat Infantryman Badge.

2.  Records show the applicant was credited with 1 year, 7 months, and 1 day of net active service during the period under review.  Based on the date of his entry on active duty (3 July 1969), this service credit confirms the applicant served on active duty until 3 February 1971.  Therefore, it would be appropriate to correct the applicant's DD Form 214 to show he was REFRAD on 3 February 1971.

3.  Records show the applicant held MOS 11B during the period of service under review.  However, records also show that during his service in the RVN he served in duty MOS 76A and 71B.  In addition, there is no evidence the applicant was assigned or attached to an infantry unit or that he served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or 
smaller size while serving in the RVN.  Thus, the evidence of record fails to show the applicant met the strict regulatory criteria established for award of the Combat Infantryman Badge.  Therefore, the applicant is not entitled to award of the Combat Infantryman Badge.

4.  The applicant qualified for award of the Vietnam Service Medal and he served in three campaigns during his service in the RVN.  Therefore, it would be appropriate to correct his DD Form 214 to show award of 3 bronze service stars for wear on his already-awarded Vietnam Service Medal.

5.  Special orders awarded the applicant the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  Therefore, it would be appropriate to show the badge on his DD Form 214.

6.  The applicant's unit was awarded the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  Therefore, it would be appropriate to correct his DD Form 214 to show this foreign unit award.

7.  The applicant's unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, it would be appropriate to correct his
DD Form 214 to show this foreign unit award.

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:

   a.  deleting from block 11d of his DD Form 214 the entry "3 FEB 70" and replacing it with the entry "3 FEB 71";


	b.  deleting from block 24 of his DD Form 214 the Vietnam Service Medal; and

   c.  adding to block 24 of his DD Form 214 the Vietnam Service Medal with
3 bronze service stars, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

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 Combat Infantryman Badge.



      ____________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)                                         AR20090016575



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ABCMR Record of Proceedings (cont)                                         AR20090016575



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