IN THE CASE OF:	  

		BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100026599


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, in effect:

a. award of the Combat Infantryman Badge (CIB);

   b. amendment of 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) to show he was awarded the CIB; and

   c. amendment of item 23a (Specialty Number & Title) of his DD Form 214 to add his secondary military occupational specialty (MOS) 11B2P (Light Weapons Infantryman).  

2.  The applicant states, in effect, he served in the Republic of Vietnam, held MOS 11B, and was wounded in a friendly-fire accident in the field while serving in Vietnam.  He states that because he served in the field as a combat infantryman, in a hostile fire zone in Vietnam, he qualified for award of the CIB.

3.  The applicant provides:

* letter from the National Personnel Records Center (NRPC), dated 8 March 2010
* Standard Form (SF) 88 (Report of Medical Examination), dated                 2 September 1965
* SF 89 (Report of Medical History), dated 2 September 1965
* DA Form 2281-R (Application for Determination of Moral Eligibility for Enlistment (Army Regulation 601-210)), dated 3 September 1965, with  1st endorsement dated 8 September 1965
* DD Form 4 (Enlistment Record – Armed Forces of the United States)
* 2AA Form 628 (Enlistment Statement), dated 17 September 1965
* 2AA Form 629 (Statement – Acknowledgement of Service Obligation under UMT&S Act, as Amended by Reserve Forces Act of 1955), dated 17 September 1965
* Special Orders Number 56, Armed Forces Examining and Entrance Station (AFEES), Cleveland, OH, dated 17 September 1965
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 29 October 1966
* General Orders Number 2983, Headquarters, 1st Infantry Division, dated 13 November 1966
* DA Form 200 (Transmittal Record), dated 13 December 1966
* DA Form 664 (Serviceman's Statement Concerning Application for Compensation from the Veterans Administration), dated 7 September 1968
* DA Form 41 (Record of Emergency Data), date undetermined
* DA Form 20 (Enlisted Qualification Record)
* DD Form 214
* Letter Orders Number 03-1050571, Office of the Adjutant General, U.S. Army Reserve Components Personnel and Administration Center, dated  9 March 1973

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's record shows he enlisted in the Regular Army, for a 3-year term, on 17 September 1965.  He completed training and was awarded MOS 11B.  

3.  His DA Form 20 shows he served in Vietnam from 7 April 1966 to                   5 November 1967.  While in Vietnam he was assigned to:

* Headquarters and Headquarters Company (HHC), 2nd Battalion, 502nd Infantry Regiment, from 14 April 1966 to 14 October 1966
* Headquarters and Headquarters Detachment, Support Battalion, 1st Brigade, 101st Airborne Division, from 15 October 1966 to 24 April 1967
* HHC, 10th Combat Aviation Battalion, 17th Aviation Group, from 25 April 1967 to 5 November 1967 

4.  Special Orders Number 314, Headquarters, 1st Brigade, 101st Airborne Division, dated 10 November 1966, promoted him to the rank/pay grade of specialist four (SP4)/E-4 and reclassified his primary MOS to 44C (Welder).  

5.  On 16 September 1968, he was honorably released from active duty, at the expiration of his term of service, and transferred to the U.S. Army Reserve Control Group to complete his remaining service obligation.  His DD Form 214 shows he completed 3 years of net service, including 1 year, 6 months, and 28 days of foreign service.  The highest rank/pay grade he attained while serving on active duty was SP4/E-4.

* Item 23a of his DD Form 214 shows his MOS at the time of his separation was MOS 44C2P
* Item 24 of his DD Form 214 does not indicate he was previously awarded the CIB

6.  There are no official orders in his records awarding him the CIB.

7.  A review of the available records does not show he was engaged in active ground combat while serving in Vietnam.

8.  A review of the Awards and Decorations Computer Assisted Retrieval System maintained by the Military Awards Branch of the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders for award of the CIB pertaining to the applicant.

9.  The applicant provided various enlistment and service documents to establish he held MOS 11B.  Included in these documents was a DA Form 2173, which documents a friendly-fire accident on 4 October 1966, in which he received a gunshot wound to his right upper thigh.  He was carrying a machine gun and another Soldier's rifle.  When we went to set his machinegun on the ground, the rifle slipped from his hands and discharged on contact with the ground.
10.  Army Regulation 600-8-22 (Military Awards) provides that the CIB 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 during such time as the unit was engaged in active ground combat and they must have been present with their qualifying infantry unit and participated actively in such ground combat.  Combat service or campaign credit alone is not sufficient to award the CIB.

11.  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.  It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  It further provides that item 23a will contain the separating Soldier's primary MOS, code number, title, and date of award.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for award of the CIB, correction of his DD Form 214 to show this award, and correction of his DD Form 214 to show he held MOS 11B was carefully considered; however, there is insufficient evidence to support this request.

2.  The applicant's infantry MOS and assignment to an infantry unit in Vietnam are not in question.  However, there is no evidence in the available records, and he did not submit any evidence, to specifically substantiate his engagement in active ground combat with an infantry unit of brigade or smaller size while in Vietnam.  Absent this evidence, there is insufficient evidence upon which to award the CIB in this case, or to correct his DD Form 214 to show it.

3.  With regard to his request for amendment of item 23a to add his secondary MOS 11B2P, the evidence of record shows that his latest promotion order established MOS 44C2P as his primary MOS.  Army Regulations governing the preparation of separation documents required the listing of a Soldier's primary MOS at the time of separation; therefore, his DD Form 214 is correct as stated and he is not entitled to amendment of item 23a of his DD Form 214 to add his secondary MOS 11B2P.

4.  In view of the foregoing there is insufficient basis for granting the 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 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)                                         AR20100000695



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ABCMR Record of Proceedings (cont)                                         AR20100026599



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