IN THE CASE OF:	  

		BOARD DATE:	    16 September 2010

		DOCKET NUMBER:  AR20100009508 


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) and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Air Medal (AM).

2.  The applicant states he was in heavy combat while in the Republic of Vietnam (RVN) and he wants his record to show it.  He also did not get his CIB.  He also states, in effect, he applied for Department of Veterans Affairs (DVA) compensation and there is nothing in his record to show the CIB or AM.

3.  The applicant submits his DD Form 214 and a picture of a downed helicopter.

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 on 3 April 1968.  Item 22 (Military Occupational Specialty (MOS)) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was awarded MOS 11B (Light Weapons Infantryman) on 9 August 1968.

3.  Item 31 (Foreign Service) of the applicant's DA Form 20 shows he served in the RVN from 4 September 1968 through 30 August 1969 in MOS 11B as a light truck driver with Headquarters and Headquarters Company, 11th Infantry Brigade.  He departed the RVN en route to Fort Hood, TX.  

4.  The applicant submitted a picture of a helicopter with the handwritten caption "6/19/1969 - tail rotor failure."

5.  There is no evidence he was ever recommended for or awarded the CIB or the AM.

6.  On 6 April 1970, the applicant was released from active duty (REFRAD).  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  He completed a total of 2 years of net active service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not show award of the CIB or AM.

7.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for the CIB or the AM pertaining to the applicant.

8.  Army Regulation 600-8-22 (Military Awards) provides that 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) provides 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.

9.  Army Regulation 600-8-22 states the Air Medal is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  This award is primarily intended for personnel on flying status but may also be awarded to those personnel whose combat duties require them to fly; for example, personnel in the attack elements of units involved in air-land assaults against an armed enemy.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

10.  Title 10, U.S. Code, section 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.

11.  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:  Commander, U.S. Army Human Resources Command, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  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.  The available evidence shows the applicant served in an infantry MOS in an infantry unit.  However, the evidence does not show that he engaged in active ground combat while serving with his unit.  There is no evidence of record and the applicant did not submit any evidence that conclusively shows the helicopter was downed because of enemy action or that he was directly involved in the incident.  Regrettably, there is insufficient evidence on which to base award of the CIB.

2.  While the available evidence is insufficient for awarding the applicant the Air Medal, this in no way affects the applicant’s right to pursue his claim for the Air Medal by submitting a request through his Member of Congress under the provisions of Title 10, U.S Code, section 1130.

3.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100009508



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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