BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20100028075 


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/grade as a sergeant (SGT)/E-5 
* award of the Combat Infantryman Badge (CIB)

2.  The applicant states he was promoted to SGT/E-5 and awarded the CIB prior to his discharge and he wants his official record corrected.

3.  The applicant provides his DD Form 214.

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 records show he enlisted in the Regular Army on 12 June 1968.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  

3.  He served in Germany from 10 November 1968 to 2 April 1969.  While in Germany, Headquarters, 4th Armored Division, published Special Orders Number 85, promoting him to specialist four (SP4)/E-4 effective 12 March 1969.

4.  He also served in the Republic of Vietnam from 17 May 1969 to 10 April 1970. He was assigned as follows:

* from 6 June to 31 July 1969, Headquarters and Headquarters Company (HHC), 1st Battalion, 502nd Infantry, as a rifleman in MOS 11B
* from 31 July to 4 January 1970, also HHC, 1st Battalion, 502nd Infantry, as a light vehicle driver in MOS 64A (Light Vehicle Driver)
* from 4 January to 10 April 1969, HHC, 2nd Brigade, 101st Airborne Division, as a vehicle driver in MOS 64A

5.  On 1 April 1970, Headquarters, 101st Airborne Division, published General Orders Number 3639 awarding him the Bronze Star Medal for service from June 1969 to March 1970 in Vietnam.  The orders listed his rank as a SGT.

6.  Upon completion of his Vietnam tour, he was reassigned to Fort Carson, CO,  He was assigned the 2nd Battalion, 8th Infantry.

7.  On 22 May 1970, Headquarters, 5th Infantry Division (Mechanized) published Special Orders Number 142 reassigning him to the 3rd Battalion, 10th Infantry.  The orders also listed his rank as a SGT.

8.  On 22 June 1970, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction to SP4/E-4 (suspended for 90 days) and a forfeiture of $116.00 pay.

9.  On 8 January 1971, Company B, 2nd Battalion, 8th Infantry, published Special Orders Number 2 appointing him as an R&U NCO (Repair and Utilities Noncommissioned Officer).  The orders listed his rank as a SGT.

10.  On 1 April 1971, Headquarters, 4th Infantry Division (Mechanized) published Special Orders Number 91 reassigning him to the U.S. Army Transfer Point effective 11 June 1971.  The orders listed his rank as a SP4.

11.  On 8 June 1971, Headquarters, 4th Infantry Division (Mechanized) published Special Orders Number 159 ordering his release from active duty effective 11 June 1971.  The orders listed his rank as a SP4.

12.  Item 33 (Appointments and Reductions) of his DA Form 20 shows the entry SP4/E-4 (Temporary) as the highest rank/grade he held. 

13.  His service records do not contain official orders promoting him to SGT/E-5. 

14.  He was honorably released from active duty on 11 June 1971 and he was transferred to the U.S. Army Reserve Control Group to complete his remaining obligation.  He completed 3 years of creditable active service.  His DD Form 214 shows in:

* Items 5a (Grade, rate or Rank) and 5b (Pay Grade) the entries "SP4" and "E-4" respectively
* Item 6 (date of Rank) shows the entry "12 March 1969"
* Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the National Defense Service Medal, Vietnam Campaign Medal with "1960" Device, and Vietnam Service Medal with three bronze service stars

15.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel.  Chapter 7 contained Army-wide promotion policy and procedures.  It stated, in pertinent part, that the promotion of enlisted personnel to grade E-5 through E-9, appointments, grade reductions, and grade restoration were announced in orders.  

16.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that items 5a and 5b will show the active duty rank and pay grade at the time of the Soldier's separation; the rank is taken from the Soldier’s promotion/reduction orders; and item 6 shows the date of rank.

17.  Army Regulation 600-8-22 (Military Awards) provides for award of the CIB.  It states that there are basically three requirements for award of the CIB.  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.  Specific requirements state, in effect, that an Army enlisted soldier must have an infantry specialty, satisfactorily performed duty while assigned or attached as a member of an infantry unit of brigade, regimental, or smaller size during any period such unit was engaged in active ground combat.  A recipient must be personally present and under hostile fire while serving in an assigned infantry primary duty, in a unit actively engaged in ground combat with the enemy.  Commanders were not allowed to make any exceptions to this policy.  During the Vietnam era, the CIB was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11F, 11G, or 11H.  

18.  U.S. Army Vietnam Regulation Number 672-1 (Awards and Decorations) specifically governed award of the CIB to Army forces operating in South Vietnam.  This regulation specifically stated that criteria for award of the CIB identified the man who trained, lived, and fought as an infantryman and the CIB is the unique award established to recognize the infantryman and only the infantryman for his service.  Further, "the CIB is not an award for being shot at or for undergoing the hazards of day to day combat."  This regulation also stated the CIB 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.

DISCUSSION AND CONCLUSIONS:

1.  With respect to his rank/grade, there insufficient evidence to show if and when the applicant was promoted or appointed to SGT/E-5:

	a.  On the one hand, the orders that awarded him the Bronze Star Medal in April 1970 show his rank as a SGT and the NJP he received in June 1970 also showed his rank as a SGT and his punishment as a suspended reduction to E-4. 

	b.  On the other hand, his service records do not contain official orders promoting him to SGT/E-5, his DA Form 20 shows the highest rank/grade he attained as SP4/E-4, and both his May 1970 transfer orders and his June 1970 separation orders listed his rank as a SP4.

	c.  In the absence of additional documentary evidence confirming his promotion/appointment and exact date, or pay records showing his pay grade on the date of his separation, there is insufficient evidence to correct his DD Form 214 in this case. 

2.  With respect to the CIB, the applicant's infantry MOS and his service in Vietnam as an infantryman in an infantry battalion at least in June and July 1969 are not in question.  However, there is no evidence in the available records and he did not submit sufficient evidence that shows he actively participated in ground combat while assigned to his infantry unit.  In the absence of evidence that he served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size, there is insufficient evidence upon which to base award of the CIB in this case.

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)                                         AR20100028075



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ABCMR Record of Proceedings (cont)                                         AR20100028075



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