IN THE CASE OF:	  

		BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20090020387 


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 to reflect his award of the Combat Infantryman Badge (CIB) and that he be awarded the Bronze Star Medal (BSM).

2.  The applicant states that he served with the 5th Special Forces Group in   I Corps from November 1967 to July 1968 and was involved in direct hostile action with the North Vietnamese Army (NVA).  He goes on to state that he served with the 4th Infantry Division performing long range reconnaissance patrols (LRRP) in Pleiku Province and was involved in direct hostile action with the NVA and the Viet Cong.  He also states that he received the CIB at Fort Lewis, Washington upon his separation from active duty; however, it was not included on his DD Form 214.  He continues by stating that he was informed by his commanding officer when serving in the 5th Special Forces that he was being recommended for award of the BSM for his outstanding duty and has never received it. 

3.  The applicant provides no additional documents with 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.  He enlisted on 12 April 1966 for a period of 3 years under the airborne enlistment option.  He completed his basic training and his advanced individual training as a direct fire infantryman at Fort Ord, California and was transferred to Fort Benning, Georgia to undergo airborne training.

3.  He completed his airborne training and was transferred to Fort Bragg, North Carolina, where he was assigned to a Special Forces training group for training as a communications specialist.  He completed that training and was awarded a primary military occupational specialty (PMOS) of 05B2S (radio operator/Special Forces qualified) on 16 June 1967.

4.  He was transferred to Vietnam on 17 December 1967 and was assigned to Signal Company, 5th Special Forces Group for duty as a radio operator.

5.  On 7 July 1968, he was transferred to Company E, 58th Infantry Regiment for duty as a radio operator.

6.  He departed Vietnam on 8 December 1968 and was transferred to Fort Lewis, Washington, where he was honorably released from active duty (REFRAD) on 10 December 1968 as an overseas returnee.  He had served 2 years, 7 months, and 29 days of total active service and his DD Form 214 issued at the time of his REFRAD reflects that he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, and the Parachutist Badge.

7.  A review of the applicant’s official records as well as a search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System (ADCARS), a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era, failed to produce an order awarding the applicant the BSM and/or the CIB.

8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  

9.  Army Regulation 600-8-22 also provides, in pertinent part, that the Combat Infantryman Badge is awarded to infantry officers and enlisted Soldiers 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.  Battle or campaign participation credit alone is not sufficient; the unit must have been in active ground combat with the enemy during the period.  A recipient must be personally present and under hostile fire while serving in an assigned infantry or special forces primary duty, in a unit actively engaged in ground combat with the enemy.  To maintain the prestige, uniqueness, and traditional value of the Combat Infantryman Badge, the criteria for award has changed little over the years.

10.  U.S. Army Vietnam Regulation 672-1 (Awards and Decorations) provided for award of the Combat Infantryman Badge.  Appendix 3 to Annex A of this regulation listed advisor positions which qualified for award of the Combat Infantryman Badge.  The regulation authorized award of the Combat Infantryman Badge to radio operators provided their primary duty was to accompany infantry or infantry-type units on tactical operations. 

11.  Title 10 of the U.S. Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

12.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to the Secretary of the Army at the following agency:  U.S. Army Human Resources Command, Personnel Service Support Division, 200 Stovall Street, Room 3S67, Alexandria, VA  22332-0405.  The applicant's unit must be clearly identified, along with the period of assignment and the award being recommended.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Corroborating evidence is best provided by commanders, leaders and fellow Soldiers who had personal knowledge of the circumstances and events relative to the request.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that he was awarded the CIB at the time of his REFRAD, his records do not contain and he has not provided a copy of those orders.  Therefore, since he possessed a PMOS of a radio operator and was assigned as a radio operator in a position that was not an advisor position, there does not appear to be any basis to award him the CIB at this time.

2.  The applicant’s contention that he was recommended for award of the BSM has also been noted; however, the available records show no evidence of such a recommendation and the applicant has failed to show that such a recommendation was ever made and was never acted upon.  Therefore, in the absence of such evidence there appears to be no basis to award him the BSM at this time.  However, while the available evidence is insufficient for awarding the applicant the BSM, this in no way affects the applicant’s right to pursue his claim for the BSM by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

3.  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:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   __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)                                         AR20090020387





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ABCMR Record of Proceedings (cont)                                         AR20090020387



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