IN THE CASE OF:	  

		BOARD DATE:	  17 March 2011

		DOCKET NUMBER:  AR20100023101 


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 and the Presidential Unit Citation.

2.  The applicant states he served in Vietnam and he was engaged in combat.  He has no physical evidence to support his contention; however, he was caught in an ambush in Vietnam in 1967 during which Soldiers were killed or wounded in action.

3.  The applicant did not provide any evidence. 

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
22 November 1965.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 36K (Field Wireman).

3.  He served in the Republic of Vietnam from 13 December 1966 to
20 November 1967.  He was assigned to Headquarters and Headquarters Company, 2nd Battalion, 39th Infantry.

4.  He was honorably released from active duty at the expiration of his term of service on 21 November 1967 in the rank/grade of specialist four (SP4)/E-4.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining service obligation. 

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the:

* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* overseas service bar

6.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 (Enlisted Qualification Record) does not show he was awarded the Combat Infantryman Badge or the Presidential Unit Citation.

7.  There are no orders in the applicant's records that show he was awarded the Combat Infantryman Badge.

8.  There is no indication in his records that he held an infantry MOS.

9.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam.  This pamphlet shows the 2nd Battalion, 39th Infantry was cited for award of the Presidential Unit Citation for the period 7 March to 22 June 1968 by Department of the Army General Orders Number 60, dated 1969.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, 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 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 Number 672-1 (Decorations and Awards) specifically governed award of the Combat Infantryman Badge to Army forces operating in South Vietnam.  This regulation specifically stated that criteria for award of the Combat Infantryman Badge identified the man who trained, lived, and fought as an infantryman and the Combat Infantryman Badge is 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 and to enlisted and warrant officer persons who have an infantry MOS 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.

12.  Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia) states unit awards are authorized for permanent wear by an individual who was assigned and present for duty with the unit at any time during the period cited or who was attached to and present for duty with the unit for at least
30 consecutive days of the period cited.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the Combat Infantryman Badge, the applicant's service in the Republic of Vietnam is not in question.  However, his records show he held a communications MOS.  There is no evidence in his records that he held an infantry MOS and he was personally present with his infantry unit that was actively engaged in active ground combat with the enemy.

2.  Regrettably, in the absence of conclusive evidence that the applicant held an infantry MOS and actively participated in combat while assigned to an infantry unit, there is insufficient evidence upon which to base award of the Combat Infantryman Badge in this case.

3.  With respect to the Presidential Unit Citation, the evidence of record shows his unit of assignment in Vietnam was awarded the Presidential Unit Citation for service from 7 March to 22 June 1968.  However, he served with this unit from
13 December 1966 to 20 November 1967.  He was not assigned or attached to this unit at the time it was awarded this award.  Therefore, he is not entitled to this award.

4.  This action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20100023101



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ABCMR Record of Proceedings (cont)                                         AR20100023101



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