IN THE CASE OF:	  

		BOARD DATE:	  16 November 2010

		DOCKET NUMBER:  AR20100014367 


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.  He also requests, in effect, correction of items 5a (Grade, Rate or Rank) and 5b (Pay Grade) of his DD Form 214 to show sergeant/E-5 instead of specialist four/E-4.

2.  The applicant states:

* he was awarded the Combat Infantryman Badge
* he was informed he was promoted to sergeant/E-5 prior to his discharge
* both the Combat Infantryman Badge and his promotion to sergeant/E-5 were omitted from his DD Form 214

3.  The applicant provides a copy of his DD Form 214 in support of 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.  The applicant enlisted in the Regular Army on 28 July 1969 for a period of 2 years.  He was awarded military occupational specialty (MOS) 95B (military police).  His DA Form 20 (Enlisted Qualification Record) shows he served in MOS 95B while assigned to the U.S. Army Depot Qui Nhon during his assignment in Vietnam.  On 1 March 1971, the applicant was released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining service obligation.

3.  Item 5a of the applicant's DD Form 214 shows the entry "SP4" [specialist four].  Item 5b of his DD Form 214 shows the entry "E-4."  Item 6 (Date of Rank) of his DD Form 214 shows the entry "4 Mar 70" [4 March 1970].  His DD Form 214 does not show the Combat Infantryman Badge as an authorized award.

4.  Separation orders show the applicant's rank as specialist four.

5.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20 shows he was appointed to the rank of specialist four effective 4 March 1970.

6.  There is no evidence of record which shows the applicant was promoted to sergeant prior to his release from active duty on 1 March 1971.

7.  There are no orders for the Combat Infantryman Badge in the available records.

8.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not show entitlement to the Combat Infantryman Badge.

9.  The applicant was honorably discharged from the USAR on 1 July 1975 in the rank of specialist four.

10.  Army Regulation 600-8-22 (Military Awards) states 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 Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11D, 11F, 11G, or 11H.

11.  U.S. Army Vietnam Regulation 672-1 governed award of the Combat Infantryman Badge to Army forces operating in South Vietnam.  This regulation stated that criteria for award of the Combat Infantryman Badge identified the man who trained, lived, and fought as an infantryman and that the Combat Infantryman Badge was the unique award established to recognize the infantryman and only the infantryman for his service.  Further, "the Combat Infantryman Badge is not an award for being shot at or for undergoing the hazards of day-to-day combat."  This regulation also stated the Combat Infantryman Badge was authorized for award to infantry officers, to enlisted personnel, and to warrant officers who had an infantry specialty/military occupational specialty and required that they must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was awarded the Combat Infantryman Badge, but he failed to provide any evidence to support this contention.  The evidence of record shows the applicant served as a military policeman assigned to the U.S. Army Depot Qui Nhon during his assignment in Vietnam.  There are no orders for the Combat Infantryman Badge.  There is also no evidence of record which shows he was an infantryman who served in active ground combat while an assigned member of an infantry unit of brigade or smaller size in Vietnam.  Therefore, there is insufficient evidence on which to base award of the Combat Infantryman Badge in this case.

2.  The applicant contends he was informed he was promoted to sergeant prior to his discharge.  However, the evidence of record shows he was a specialist four at the time of his release from active duty on 1 March 1971, which is properly reflected in items 5a and 5b of his DD Form 214.  There is no evidence of record and the applicant did not provide any evidence which shows he was promoted to sergeant/E-5 prior to 1 March 1971.  Therefore, there is no basis for granting this portion of 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)                                         AR20100014367



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ABCMR Record of Proceedings (cont)                                         AR20100014367



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