IN THE CASE OF:	  

		BOARD DATE:	  10 May 2011

		DOCKET NUMBER:  AR20100025567 


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 his rank and grade as sergeant (SGT)/E-5, award of the Combat Infantryman Badge (CIB), and his correct social security number (SSN).

2.  The applicant states he should have received the CIB for his combat service while in the Republic of Vietnam (RVN).  He states to see Special Order 266 attached.  He also states see pictures and Department of Veterans Affairs (DVA) rating decision.  He further states his SSN should read a completely different number.

3.  The applicant provides:

* his DD Form 214 for the period ending 22 November 1966
* a DA Form 20 (Enlisted Qualification Record) last audited on 
26 September 1968
* a self-authored email to his Congressman
* three self-authored letters to the DVA
* a DVA Rating Decision, dated 24 September 2009
* his social security card
* a photocopy of a CIB medal
* unviewable photocopies of pictures

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 requested correction of his SSN on his DD Form 214 for the period ending 22 November 1968.  On 28 May 2009, a DD Form 215 (Correction to DD Form 214), was issued to correct his SSN on the referenced DD Form 214. A copy of this DD Form 215 will be provided to him along with these Proceedings.  Therefore, this portion of his request will not be discussed further in these Proceedings.

3.  He enlisted in the Regular Army on 8 December 1961 for a period of 3 years.  Upon completion of initial entry training, he was awarded military occupational specialty (MOS) 111.10 (Light Weapons Infantryman).  He was released from active duty on 7 December 1964 at the expiration of his term of service and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.

4.  On 4 February 1966, he again enlisted in the Regular Army for a period of
4 years.  He was awarded MOS 11B (Light Weapons Infantryman).

5.  His DA Form 20 shows in:

* Item 31 (Foreign Service) he served in Korea during the period 
13 February through 31 August 1966 and in the Republic of Vietnam (RVN) from 30 September 1967 through 28 September 1968
* Item 33 (Appointments and Reductions) he was advanced to specialist four (SP4)/E-4 on 24 June 1966 and a lined-through entry to SGT/E-5 with no "authority" entry
* Item 38 (Record of Assignments) he was assigned to the 196th Infantry Brigade and to the 23rd Administrative Company while in the RVN
* Item 41 (Awards and Decorations) no entry for the CIB
6.  His official military personnel file (OMPF) contains several documents that show his rank/grade as SGT/E-5; however, there is no record of an order promoting him to SGT.  His OMPF is also void of orders or any other document that shows he was recommended for or awarded the CIB.

7.  The applicant provided Special Orders Number 266, issued by Headquarters, Americal Division, dated 22 September 1968, that shows he was awarded  
MOS 03C and withdrew MOS 11B.  His standard name line on the order shows his rank/grade as SGT/E-5.

8.  His OMPF contains:

* Special Orders Number 244, issued by Headquarters, Fort Riley, KS, dated 19 November 1968, directed his discharge from the Army and show his rank/grade as SGT/E-5
* Special Orders Number 245, issued by the same headquarters, dated 
20 November 1968, that amended Special Orders Number 244 to show his rank/grade as SP4/E-4

9.  On 22 November 1968, he was released from active duty.  Items 5a (Grade, Rate, or Rank) and 5b (Pay Grade) of his DD Form 214 for the period ending 
22 November 1968 show his rank/grade as SP4/E-4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) does not show the CIB.

10.  He provided an email message to his Congressman and letters to the DVA in which he attests to his entitlement to the CIB and a DVA Rating Decision that shows he is receiving service-connected disability compensation.  He also provided a photocopy of the CIB and unviewable photocopies of pictures.

11.  He submitted a request to the U.S. Army Human Resources Command (USAHRC) Military Awards Branch to have the CIB added to his DD Form 214.  The USAHRC could not confirm his entitlement to the CIB and, in a memorandum dated 3 December 2009, USAHRC informed him of the requirements and documentation necessary in order to establish his entitlement to the CIB.

12.  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.

13.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active service and provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.   It states for item 5a and b, enter the rank/grade in which serving at the time of separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's OMPF contains several documents that show his rank/grade as SGT/E-5; however, there are no orders in his OMPF and the applicant did not provide any orders confirming he was promoted to SGT/E-5 and that he held such rank at the time of his separation.  Evidence shows the entry on his
DA Form 20 that pertains to promotion to SGT/E-5 was lined through and his separation orders were amended to show his rank/grade as SP4/E-4.  He did not provide any evidence to show that the amendment to his separation orders was incorrect.  Therefore, the rank and grade shown on his DD Form 214 appears to be correct.  Therefore, there is insufficient evidence to grant this portion of his request.

2.  The evidence shows he was awarded an infantryman MOS and he served in an infantry unit during a portion of his tour in the RVN.  However, his OMPF is void of any orders or any other document that indicates he was recommended for or awarded the CIB.  In the absence of corroborating evidence showing he was awarded or recommended for award of the CIB or that he ever engaged in active ground combat, there is an insufficient basis for granting this portion of his request.

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)                                         AR20100025567



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100025567



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1