BOARD DATE:	  4 August 2011

		DOCKET NUMBER:  AR20100030114 


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, award of the Combat Infantryman Badge (CIB). 

2.  He states U.S. Army Vietnam Regulation 672-1 (Awards and Decorations), in effect at the time, did not authorize Armor/Air Cavalry officers award of the CIB although they may have served as Aero Medical Rifle Platoon Commander.   

3.  He contends that Army Regulation 600-8-22 (Military Awards), which is now in effect, authorizes the CIB to Armor/Air Cavalry officers. 

4.  He provides:

* Special orders (SO)
* Two officer efficiency reports (OER's)
* Two letters
* His DD Form 214 (Report of Separation from Active Duty)
* Two DD Forms 215 (Correction to DD Form 214)
* An extract from Army Regulation 600-8-22

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.  His record shows he was appointed a second lieutenant in the U.S. Army Reserve (USAR) on 25 May 1966, and he entered active duty on the same day.  After completion of training, he was awarded a primary specialty of 1981 (Rotary Wing Aviation Unit Commander).   

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in item 
5 (Oversea Service) he served two tours of duty in the Republic of Vietnam (RVN) from 1 February 1968 through 31 January 1969 and from 
22 September 1971 through 25 March 1972.

4.  Item 9 (Awards, Decorations and Campaigns) of his DA Form 2-1 is void of the CIB.  

5.  He provided SO Number 133, dated 7 July 1967.  This order shows he was assigned to 7th Squadron, 1st Cavalry Division in primary specialty 1203 (Armor) in the rank of 1LT.  

6.  He provided two OERs for the periods 29 August 1967 through 12 March 1968 and 13 March through 7 July 1968.  These reports show he was assigned as a platoon commander (leader) with Troop C, 7th Squadron, 1st Air Cavalry, and as a section leader of the lift platoon with Troop B, 7th Squadron, 1st Air Cavalry, both in the RVN.  The latter report shows he volunteered on numerous occasions to evacuate the wounded from locations which were under heavy enemy fire.   

7.  A letter, dated 8 May 1972, describes the applicant as resourceful with outstanding abilities to get the job done.  His performance under combat conditions was exemplary and he often did not hesitate to volunteer his services to accomplish the mission.  

8.  He retired on 28 February 1979 after completing more than 20 years of active service.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not list the CIB nor do his DD Forms 215.   

9.  U.S. Army Vietnam Regulation 672-1 governed award of the CIB to Army forces operating in South Vietnam.  This regulation stated the criteria for award of the CIB identified the man who trained, lived, and fought as an infantryman and that the CIB was the unique award established to recognize the infantryman and only the infantryman for his service.  However, "the CIB is not an award for being shot at or for undergoing the hazards of day-to-day combat."  In addition, it provided for award of the CIB to infantry personnel who were members of infantry platoons and squads in armored cavalry squadrons and regiments.  

10.  Army Regulation 600-20 (Army Command Policy) prescribes the policy and responsibility of command, which includes well-being of the force, military and personal discipline and conduct.  Command authority is exercised by virtue of office and the special assignment of members of the United States Armed Forces holding military grade who are eligible to exercise command.  A commander is, therefore, a commissioned or warrant officer who, by virtue of grade and assignment, exercises primary command authority over a military organization or prescribed territorial area that under pertinent official directives is recognized as a "command."  Soldiers are assigned to stations or units where their services are required.  The commanding officer then assigns appropriate duties.  Without orders from proper authority, a Soldier may only assume command when eligible according to headquarters or when the appointed commander dies, becomes disabled, retires, is reassigned, or is temporarily absent, the senior regularly assigned United States Army Soldier will assume command.  Oral assumption of command may be used by units not using orders or other documentation to announce assumption of command or when other circumstances necessitate.  Oral assumption of command should be followed by a written assumption of command memorandum.

11.  Army Regulation 600-8-22 states the CIB is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry military occupational specialty (MOS).  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  Paragraph 8-6b(2) specifically states a recipient must be personally present and under hostile fire while serving in an assigned infantry or Special Forces primary duty, in a unit actively engaged in ground combat with the enemy.  The unit in question can be of any size smaller than brigade.  For example, personnel possessing an infantry MOS in a rifle squad of a cavalry platoon in a cavalry troop would be eligible for award of the CIB.  Battle or campaign participation credit alone is not sufficient; the unit must have been in active ground combat with the enemy during the period. 


12.  Paragraph 8-6e(1) of Army Regulation 600-8-22 provides special provisions for any officer whose basic branch was other than infantry during the Vietnam Conflict, Laos, and Korea on the Demilitarized Zone.  It states that during the Vietnam Conflict, any officer whose basic branch was other than infantry who, under appropriate orders, has commanded a line infantry unit of brigade, regimental, or smaller size for at least 30 consecutive days is deemed to have been detailed in infantry and is eligible for award of the CIB notwithstanding absence of a written directive detailing that Soldier in the infantry, provided all other requirements for the award have been met.  Orders directing the officer to assume command will be confirmed in writing at the earliest practicable date. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be awarded the CIB based on current regulatory guidance for his combat service in the RVN was carefully considered.  

2.  The evidence of record shows he was awarded primary specialty 1981 (Rotary Wing Aviation Unit Commander) and served in primary specialty 1203 (Armor Officer), as a platoon commander (leader) of an aero rifle platoon in 7th Squadron, 1st Air Cavalry Troop during his tour in Vietnam.  There are no orders detailing him as an infantryman and no orders announcing his assumption of command.

3.  Absent any evidence of record showing that the applicant held and served in an infantry specialty in ground combat with a qualifying infantry unit during his RVN tour, or that he was awarded the CIB by proper authority while he was on active duty, the regulatory burden of proof necessary to support award of the CIB has not been satisfied in this case.  As a result, he is not entitled to the requested relief. 

4.  The applicant and all others concerned should know that 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)                                         AR20100030114





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ABCMR Record of Proceedings (cont)                                         AR20100030114



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