IN THE CASE OF:	  

		BOARD DATE:	  21 June 2011

		DOCKET NUMBER:  AR20100024874 


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 that he be awarded the Combat Infantryman Badge (CIB) and the Silver Star.

2.  The applicant states he deserves the CIB and the Silver Star because he earned them.  He goes on to state that he deserves the CIB because he was fired at by North Vietnamese and fire was returned.  He goes on to state that in April or May 1972 a captain showed him a copy of orders awarding him the Silver Star; however, he never received it and he wants it.

3.  The applicant provides a one-page handwritten letter explaining his application and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 commissioned as a U.S. Army Reserve (USAR) Infantry second lieutenant on 18 June 1970 and ordered to active duty on 12 August 1970.  He completed the Infantry Officer Basic Course at Fort Benning, Georgia and remained at Fort Benning for his first assignment.  

3.  He was transferred to Vietnam on 10 August 1971 and was promoted to the rank of first lieutenant (1LT) on 12 August 1971.  He was assigned to Headquarters and Headquarters Company, 196th Infantry Brigade for duty as the Brigade Industrial Relations and Education Officer.  

4.  On 28 April 1972, he was awarded the Bronze Star Medal for meritorious service during the period of 10 August 1971 to 3 May 1972.

5.  On 10 May 1972, he departed Vietnam and was transferred to Oakland Army Base, California where he was honorably released from active duty that date and transferred to the USAR Control Group (Annual Training).  He had served 1 year, 8 months, and 29 days of active service.  His DD Form 214 shows his specialty was listed as 1542 (Infantry Unit Commander).  He was awarded the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, and Bronze Star Medal.  

6.  A review of his official records failed to show any indication the applicant was recommended for award of the Silver Star or that he was awarded the Silver Star or the CIB.  Additionally, a 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 U.S. Army Human Resources Command, failed to reveal any awards pertaining to the applicant that he has not already received.

7.  There is also no evidence in the available records to show he met the requirements for award of the CIB in regard to engaging the enemy in combat. 

8.  Army Regulation 600-8-22 (Military Awards) states there are basically three requirements for award of the Combat Infantryman Badge.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.


9.  Army Regulation 600-8-2 states the Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

10.  Title 10 of the U.S. Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration.  Based upon such review, the Secretary shall determine the merits of approving the award.

11.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander, U.S. Army Human Resources Command, ATTN:  AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  The unit must be clearly identified, along with the period of assignment and the recommended award.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request.  The burden and costs for researching and assembling supporting documentation rest with the applicant.

DISCUSSION AND CONCLUSIONS:

1.  While the available evidence is insufficient for awarding the applicant a Silver Star, this in no way affects his right to pursue his claim for the Silver Star by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

2.  The applicant’s contention that he should have been awarded the CIB has been noted and found to lack merit.  The evidence is insufficient to show the applicant actively engaged the enemy while serving in an infantry unit in Vietnam. 

3.  Therefore, in the absence of such evidence, there appears to be no basis to award him the CIB at this time.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   _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)                                         AR20100024874



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ABCMR Record of Proceedings (cont)                                         AR20100024874



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