IN THE CASE OF:	  

		BOARD DATE:	  31 August 2010

		DOCKET NUMBER:  AR20100006925 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Combat Infantryman Badge (CIB) and the Republic of Vietnam (RVN) Civil Actions Honor Medal First Class Unit Citation.

2.  The applicant states he meets the eligibility requirements for the CIB and the RVN Civil Actions Honor Medal First Class Unit Citation was not included on his DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) from an earlier correction of his records.

3.  The applicant provides:

* his DD Form 214
* his DD Form 215
* a National Personnel Records Center letter
* his DA Form 20 (Enlisted Qualification Record)
* a 4-page extract of Army Regulation 600-8-22 (Military Awards)
* Special Orders Number 261
* an eyewitness affidavit
* eyewitness personnel documents
* Record of Proceedings Docket Number AR20070000593



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 military records show he was inducted into the Army of the United States on 29 July 1969.  He was awarded the military occupational specialties (MOS) of 11B (light weapons infantryman) and 53B (oxygen-acetylene production specialist).  He was promoted to pay grade E-4.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows that while he was in Vietnam he was assigned to the 865th Gas Detachment during the period 16 January 1970 to 25 April 1970 with his principal duty assignment as an oxygen-acetylene specialist.  This form further shows he was assigned to Company B, 2d Battalion, 14th Infantry, 25th Infantry Division, as a rifleman during the period 3 May 1970 to 12 July 1970.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded the National Defense Service Medal, one overseas service bar, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), Army Good Conduct Medal (1st Award), RVN Campaign Medal with Device (1960), Vietnam Service Medal with three bronze service stars, Air Medal, Army Commendation Medal, RVN Gallantry Cross with Palm Unit Citation, and Expert Marksmanship Qualification Badge with Machinegun Bar.

5.  The available records are void of any orders or other documents that indicate he was ever recommended for or awarded the CIB by proper authority.

6.  The applicant was honorably released from active duty on 28 July 1971 and he was transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining Reserve obligation.  He completed 2 years of creditable active service.

7.  Army Regulation 600-8-22 (Military Awards) states the CIB 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.

8.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the 2d Battalion, 14th Infantry, was awarded the RVN Civil Actions Honor Medal First Class Unit Citation for the period 20 April 1966 to 21 January 1970.

9.  A former Soldier who was separated from active duty in the rank of sergeant/pay grade E-5 who was assigned to the same company as the applicant during the period 3 May 1970 to 12 July 1970 provided some of his personnel documents and an affidavit attesting to witnessing the applicant's engagement in combat.  This witness was awarded the CIB while assigned to this same unit.  He stated that the applicant was engaged in combat in a company-level firefight on the night of 31 May 1970.  He also stated that the applicant was present when their fire support base was attacked numerous times.

DISCUSSION AND CONCLUSIONS:

1.  There is no specific evidence in the applicant's records showing he was personally present and participated with the qualifying infantry unit while it was engaged in active ground combat with enemy forces.  However, the witness was from the applicant's same unit and had been awarded the CIB.  Therefore, based on the applicant's own statement and the affidavit of the former Soldier (noncommissioned officer) the preponderance of evidence supports the applicant's contentions that he was personally engaged in combat with the enemy and is therefore eligible for award of the CIB.  As such, it would be appropriate to award him this badge and add it to his DD Form 214.

2.  While it is unfortunate that in the Board's previous consideration it was shown that the applicant was eligible for the RVN Civil Actions Honor Medal First Class Unit Citation in the consideration of evidence, this is not a basis for adding this unit award to his DD Form 214.  The Record of Proceedings correctly did not recommend this award be added to his DD Form 214 since the applicant was not assigned to the unit during the time for which the unit was cited for the award.  As such, there is no error or injustice and the applicant is not entitled to have the RVN Civil Actions Honor Medal First Class Unit Citation added to his DD Form 214.

3.  In view of the foregoing, the applicant is entitled to have his records corrected as shown below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that the record of the individual concerned be corrected by awarding him the CIB and adding the CIB to his DD Form at this time.

2.  The Board further determined 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 adding the RVN Civil Actions Honor Medal First Class Unit Citation to his DD Form 214.



      _______ _ 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)                                         AR20100006925



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ABCMR Record of Proceedings (cont)                                         AR20100006925



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