IN THE CASE OF:	  

		BOARD DATE:	    6 April 2010

		DOCKET NUMBER:  AR20090017716 


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 the Combat Infantryman Badge (CIB) be added to his record and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states he was issued the CIB, but there is nothing in his records to show this award.

3.  The applicant provides DD Forms 214, dated 30 January 1967 and 15 September 1976, and a photocopy of the CIB 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 enlisted in the Regular Army and entered active duty on 31 January 1964.  It also shows he was trained in and awarded military occupational specialty (MOS) 640.00 (Light Truck Driver).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in Korea from 22 May 1965 through 21 June 1966.  Item 38 (Record of Assignments) shows he was assigned to Headquarters and Headquarters Company (HHC), 1st Battalion, 12th Infantry Regiment, and HHC, 2nd Battalion, 38th Infantry Regiment, during his tour of duty in Korea.  It further shows he performed duties in MOS 63B as a light truck driver in both of these units.

4.  Item 41 (Awards and Decorations) of the DA Form 20 does not include the CIB in the authorized awards listed.

5.  On 30 January 1967, the applicant was honorably released from active duty in the rank of sergeant after completing 3 years of active duty service.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued shows he earned the following awards

* Army Good Conduct Medal
* National Defense Service Medal
* Expert Marksmanship Qualification Badge with Rifle Bar

6.  The record further shows the applicant again enlisted on 14 September 1973. He was trained in and awarded MOS 11B (Infantryman).

7.  The DA Form 2-1 (Personnel Qualification Record) covering the applicant's second period of active duty service does not include the CIB in item 9 (Awards, Decorations, and Campaigns).

8.  On 15 September 1976, the applicant was honorably discharged by reason of physical disability.  Item 18f (Foreign and/or Sea Service) of the DD Form 214 (Report of Separation from Active Duty) he was issued lists no foreign service during the period and item 26 does not include the CIB in the authorized awards listed.

9.  The applicant's record is void of documents or orders indicating he was recommended for or awarded the CIB by proper authority during his active duty tenure.

10.  During the processing of this case, a member of the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System which is a web based index maintained by the U.S. Army Human Resources Command Military Awards Branch that contains award orders issued during the Vietnam era.  There were no CIB orders pertaining to the applicant on this system.

11.  Army Regulation 600-8-22 (Military Awards) states 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) states that during the Vietnam era the CIB was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11D, 11F, 11G, or 11H.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention he was issued the CIB and it should be added to his record and DD Form 214 has been carefully considered.  However, the evidence does not support this claim.

2.  By regulation, in order to qualify for the CIB, a member must hold and have served in an infantry MOS; he must serve in a qualifying infantry unit of brigade, regimental, or smaller size; and he must be present with his qualifying infantry unit and participate with the unit while it is engaged in active ground combat with enemy forces.

3.  The applicant's record is void of documents or orders showing he was recommended for or awarded the CIB by proper authority during either of his active duty periods of service.  During his first period of active duty service, he served in Korea in qualifying infantry units; however, he held and served in MOS 640.00 performing duties as a light truck driver.  As a result, since he did not hold or serve in a qualifying infantry MOS, he is not eligible for the CIB based on this service.

4.  During his second period of active duty service, he held and served in an infantry MOS; however, he never served overseas in a qualifying combat zone that authorized award of the CIB.  Therefore, he is also not eligible for the award during this period of service.

5.  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)                                         AR20090017716



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ABCMR Record of Proceedings (cont)                                         AR20090017716



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