IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100011484 


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 Forms 214 (Reports of Transfer or Discharge) dated 14 November 1968 and 28 February 1975 to show he was awarded an infantryman military occupational specialty (MOS) and that he was awarded the Silver Star and the Combat Infantryman Badge.

2.  The applicant states his DD Forms 214 do not show his proper MOS or that he was awarded the Combat Infantryman Badge and the Silver Star.

3.  The applicant provides a letter from the Department of the Veterans Affairs dated 6 April 2005 verifying his service and copies of his DD Forms 214.

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 was inducted into the army on 28 November 1966.  He completed training and was awarded a 36K2O (wireman) MOS.  He arrived in Vietnam on 27 November 1967.  His DA Form 20 (Enlisted Qualification Record) shows he performed duties as a 36K wireman.

3.  The applicant returned to the States on 14 November 1968 and he was honorably released from active duty that date.  The DD Form 214 shows he was issued the following awards:

* National Defense Service Medal
* Vietnam Service Medal
* Purple Heart
* Republic of Vietnam Campaign Medal
* The Army Commendation Medal
* Expert Marksmanship Qualification Badge with Rifle M-16

4.  The applicant enlisted in the Regular Army on 6 January 1969.  He arrived in Germany on 17 January 1969.  His records show his MOS as field wireman.  

5.  He returned to the States on 28 December 1971.  He was honorably discharged on 28 February 1975.  The DD Form 214 for this period of service shows he was issued the following awards:

* National Defense Service Medal
* Vietnam Service Medal w/4 Bronze Service Stars
* Republic of Vietnam Campaign Medal with Device (1960)
* Army Commendation Medal
* Purple Heart

6.  A review of the applicant's records does not show that orders were ever published awarding him the Silver Star or the Combat Infantryman Badge.  Further review of his records fails to show that he was ever awarded an infantry MOS.

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 awarding the applicant the Silver Star or the Combat Infantryman Badge.

8.  Army Regulation 600-200 (Enlisted Personnel Management System) provides, in pertinent part, that a Soldier who can perform duties required of any 3-character MOS may be awarded that MOS.  However, he or she must be 
qualified in accordance with the specifications and qualifications required for a particular MOS.  A new MOS will be awarded on qualification in any MOS (including prior military service), successful completion of MOS producing training, successful completion of on-the-job training for not less than 60 days, change in MOS structure, identifying civilian acquired skills having a direct MOS counterpart, and withdrawal of a primary military occupational specialty (PMOS).

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

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 applicant's contentions have been noted.  However, a review of the available records does not show that the applicant was ever awarded an infantry MOS or the Combat Infantryman Badge or that he performed duties as an infantryman in Vietnam.  His records clearly show that he was awarded a wireman MOS and this information is shown on his DD Forms 214.

2.  There are no orders in his official record or in ADCARS awarding him the Silver Star or the Combat Infantryman Badge.  In the absence of evidence to the contrary, it must be presumed that the action taken by the Army in his case was correct.

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

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)                                         AR20100011484



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ABCMR Record of Proceedings (cont)                                         AR20100011484



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