IN THE CASE OF:	  

		BOARD DATE:	  1 April 2010

		DOCKET NUMBER:  AR20090020180 


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), correction of his record to reflect promotion to E-5, and a uniform with all of his decorations.  

2.  The applicant states the following:

     a.  He held a supply military occupational specialty (MOS), but when he arrived in the Republic of Vietnam (RVN) he was assigned MOS 11B (Light Weapons Infantryman) and served in that MOS in combat during the Tet Offensive.  

     b.  He was selected for promotion to E-5 (Sergeant), but was released from active duty before he received promotion orders.

     c.  His uniform was destroyed in a flood in 1999 and he would like to have it replaced with all accoutrements including his decorations because he wishes to be interred in uniform.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a letter from the Department of Veterans Affairs informing him of that agency's decision on his claim for service connected compensation.



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 ABCMR does not issue decorations or uniforms.  For Army personnel, the National Personnel Records Center will verify the awards to which a veteran is entitled and forward the request with the verification to the appropriate service department for issuance of the medals.  Written requests with appropriate supporting evidence may be addressed to the National Personnel Records Center, 9700 Page Avenue, St. Louis, MO 63132-5100.  Once verified, the replacement medals and devices are shipped to the veteran by the U.S. Army Tank Automotive and Armaments Command (TACOM), Clothing and Heraldry (PSID). P.O. Box 57997, Philadelphia, PA  19111.  Uniforms are not issued to former service members, but are available for purchase from private vendors.  This issue will not be considered further in these proceedings.

3.  The applicant was inducted into the Army of the United States and entered active duty on 23 June 1967.  He was trained in and awarded MOS 76A (Supplyman).  He was awarded primary MOS 11B on 25 January 1968.

4.  A DA Form 20 (Enlisted Qualification Record) shows:

* in item 31 (Foreign Service) the applicant served in the RVN for the period 8 November 1967 through 6 November 1968  
* in item 38 (Record of Assignments) he was assigned to Headquarters and Headquarters Company, 3d Battalion, 7th Infantry, 199th Infantry Brigade, with duty MOS 11B
* in item 41 (Awards and Decorations) no evidence that he was awarded the CIB

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 does not show award of the CIB.  
6.  The applicant's record is void of any documentation showing he was wounded as a result of hostile action or received any decorations for valor or gallantry in combat action during his service in the RVN.

7.  Army Regulation 600-8-22 (Military Awards) states the CIB is awarded to infantry and warrant officers and enlisted personnel who have an infantry MOS.  Individuals must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental, or smaller size.  

8.  The applicant's record shows he was selected for promotion to E-5 on 5 June 1969.  His record also shows that his promotion was contingent on promotion allocations and that he was fifth on the list of individuals recommended for promotion to E-5.

9.  The applicant's DD Form 214 shows he was released from active duty on 
20 June 1969.  Items 5a (Grade, Rate, or Rank) and 5b (Pay Grade) show he held the rank of Specialist Four and grade of E-4 at the time of his release.    

10.  Chapter 7 of Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, stated promotion would be made from approved recommended lists by order of merit for a given grade and MOS as vacancies occur and quotas were received.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's requests for award of the CIB and correction of his record to reflect promotion to E-5 were carefully considered and not supported by the evidence in this case.

2.  The applicant's infantry MOS and his assignment to an infantry unit in the RVN are not in question.  However, there is no evidence in the available records showing he was an active participant in ground combat while assigned to an infantry unit.  In the absence of evidence that he actively participated in ground combat while assigned to an infantry unit, there is insufficient evidence upon which to base award of the CIB in this case.

3.  The applicant's record shows he was selected for promotion to E-5 on 5 June 1969 and released from active duty in the grade of E-4 on 20 June 1969.  At the time, promotions were made from approved lists of recommended individuals as vacancies occurred and quotas were received.  It is reasonable to presume that no vacancies or changes in quotas occurred prior to his release from active duty that would have allowed his promotion to E-5.  Therefore, he is not entitled to have his records amended to change his rank or grade.    
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)                                         AR20090020180





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ABCMR Record of Proceedings (cont)                                         AR20090020180



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