IN THE CASE OF:	  

		BOARD DATE:	  18 January 2012

		DOCKET NUMBER:  AR20110013252 


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: 

* In item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) the Combat Infantryman Badge
* In item 30 (Remarks) the entry excess leave of 4 days "from 8 August 1970 through 11 August 1970" vice "8 August 1971 through 11 August 1971"

2.  The applicant states:

* He held an infantry military occupational specialty (MOS) and spent his entire Vietnam tour with B Company, 196th Light Infantry Brigade
* His excess leave was taken in 1970; not 1971.  He was clearing the battalion and the brigade to return to the continental United States in 1971

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 was inducted into the Army of the United States on 12 March 1970.  He completed training and was awarded MOS 11B (Light Weapons Infantryman).

3.  His record shows he served in Vietnam with Company B, 1st Battalion,
46th Infantry, from 31 August 1970 to 10 August 1971.

4.  He was honorably released from active duty on 11 November 1971 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) for completion of his Reserve obligation.

5.  Item 24 of his DD Form 214 shows the:

* National Defense Service Medal
* Vietnam Service Medal with one bronze service star
* Army Commendation Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
* Expert Marksmanship Qualification Badge with Machinegun Bar (M-60)

6.  Item 30 of his DD Form 214 shows various entries, including a continuation to item 26b (Days Accrued Leave Paid) that shows the entry "excess leave of
4 days from 8 August 1971 through 11 August 1971."

7.  Item 41 (Awards and Decorations) of his DA Form 20 (Enlisted Qualification Record) does not list the Combat Infantryman Badge.  His records do not contain official orders awarding him the Combat Infantryman Badge.

8.  Army Regulation 600-8-22 (Military Awards) states the Combat Infantryman Badge 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.  Additionally, Appendix V of U.S. Army Vietnam (USARV) Regulation 672-1 states that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11D, 11F, 11G, or 11H.

9.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training.  During the Vietnam War, item 26b was used to record the number of days of accrued leave paid to the Soldier.  Additionally, item 30 was used to complete entries too long for their respective blocks.  When used for cross-reference, the item number must precede the continued information.  One of these entries pertained to excess leave.  When recorded in item 32, an entry is made to the inclusive dates of excess leave.  For example "excess leave of 5 days, from 5 November 1957 thru 9 November 1957." 

DISCUSSION AND CONCLUSIONS:

1.  With respect to the Combat Infantryman Badge, his service in Vietnam in an infantry MOS with an infantry unit is not in question.  However, there is no evidence in the available records and he did not submit substantiating evidence that shows he was personally present and under hostile fire while serving in his assigned infantry duty in an infantry unit that was actively engaged in ground combat with the enemy.  Therefore, there is an insufficient evidentiary basis for awarding him the Combat Infantryman Badge in this case.

2.  With respect to the excess leave, his pay and/or leave records are neither available nor did he provide those records with his application.  In the absence of his pay/leave records, there is insufficient evidence to determine when he took the excess leave or the exact dates of such leave.  It is possible he accrued the excess leave en route to Vietnam.  It is equally possible he took excess leave en route from Vietnam.  Therefore, there is no basis for granting this portion of his requested relief.

3.  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)                                         AR20110013252



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ABCMR Record of Proceedings (cont)                                         AR20110013252



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