IN THE CASE OF:	  

		BOARD DATE:	  8 March 2012

		DOCKET NUMBER:  AR20110024193 


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 private first class (PFC)/E-3
* Awards of the Air Medal and Combat Infantryman Badge

2.  The applicant states:

* He joined the U.S. Army infantry in Buffalo, NY, while living in Toronto, Canada
* He volunteered for Vietnam but he was denied because he could not get a favorable background investigation
* He volunteered for assignment to the 1st Cavalry Division but he was assigned to the 194th Military Police instead
* He was ultimately reassigned to B Company, 1st Battalion, 5th Cavalry, 1st Cavalry Division as a point man and then as a squad leader
* He returned to the continental United States and went absent without leave (AWOL)
* After about a year of being AWOL he turned himself into military authorities

3.  The applicant provides:

* DD Form 214
* Standard Form 93 (Report of Medical History)
* DA Form 3082-R (Statement of Medical Condition)
* Standard Form 88 (Report of Medical Examination)
* DA Form 1577 (Authorization for Issuance of Awards)

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 enlisted in the Regular Army for 3 years on 5 May 1967 and he held military occupational specialty 11B (Light Weapons Infantryman).  He served in the Republic of Vietnam from 18 May 1968 to 19 May 1969.  He was assigned as follows:

* 23 April to 3 October 1968, as a security guard, 194th Military Police Company
* 7 October 1968 to 15 April 1969, Company B, 1st Battalion, 5th Cavalry, 1st Cavalry Division

3.  Special Orders Number 342, issued by Headquarters, 1st Cavalry Division, on 20 November 1968, promoted him to sergeant (SGT)/E-5.

4.  General Orders Number 3193, issued by Headquarters, 1st Cavalry Division, on 15 March 1969, awarded him the Bronze Star Medal for meritorious service from April 1968 to April 1969.

5.  Subsequent to completing his Vietnam tour, he was reassigned to the 3rd Battalion, 10th Brigade, 5th Infantry Division, Fort Carson, CO.

6.  On 17 July 1969, he departed his unit in an AWOL status and on 18 August 1969, he was dropped from Army rolls as a deserter.  He returned to military control on 26 February 1971.  He was placed in pre-trial confinement from 4 March to 15 April 1971.

7.  On 16 April 1971, he was convicted by a special court-martial of one specification of being AWOL from 17 July 1969 to 26 February 1971.  The Court sentenced him to a reduction to private (PV1)/E-1 and confinement at hard labor for 5 months.  The convening authority approved his sentence on 21 May 1971.

8.  He was placed in confinement on 16 April 1971 and released on 27 July 1971. Upon release, he was assigned to A Troop, 1st Squadron, 6th Armored Cavalry Regiment, Fort Meade, MD.

9.  On 28 July 1971, he was promoted to private (PV2)/E-2 in accordance with chapter 7 of Army Regulation 600-200 (Enlisted Personnel Management System).

10.  His records do not contain official orders awarding him the Air Medal or the Combat Infantryman Badge.  Additionally, no flight record is available in his service records. 

11.  A review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any orders for the Air Medal.

12.  Item 41 (Awards and Decorations) of his DA Form 20 (Enlisted Qualification Record) lists various awards, two of which are the Combat Infantryman Badge and the Air Medal.  However, the authority for these awards is shown as "pending orders."

13.  He was honorably released from active duty on 23 December 1971.  His 
DD Form 214 shows he completed 2 years, 7 months, and 16 days of creditable active service and he had 733 days of lost time.  This form also shows in:

* Item 5a (Grade, Rate or Rank), 5b (Pay Grade), and 6 (Effective Date of pay Grade) the entries "PVT," "E-2," and "28 July 1971" respectively
* Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the:

* National Defense Service Medal
* Bronze Star Medal
* Vietnam Campaign Medal
* Vietnam Service Medal
* Two Overseas Service Bars
* Expert Marksmanship Qualification Badge with Rifle Bar

14.  On 9 November 2011, by letter, an official at the U.S. Army Human Resources Command notified him that his office was unable to locate official orders supporting award of the Combat Infantryman Badge or the Air Medal.  However, a review of his records indicated his entitlement to additional awards.  Accordingly, he was issued a DD Form 215 (Correction to DD Form 214 (Certificate of Release or Discharge from Active Duty)) that added the:

* Vietnam Service Medal with four bronze service stars
* Sharpshooter Marksmanship Qualification badge with Mortar Bar
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Meritorious Unit Commendation
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation

15.  Army Regulation 600-8-22 provides for the following awards:

	a.  the Air Medal is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  This award is primarily intended for personnel on flying status, but may also be awarded to those personnel whose combat duties require them to fly, for example personnel in the attack elements of units involved in air-land assaults against an armed enemy.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

	b.  the Combat Infantryman Badge 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.  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.

16.  U.S. Army Vietnam (USARV) Regulation 672-1, in effect at the time:

	a.  provided guidelines for award of the Air Medal.  It established that passenger personnel who did not participate in an air assault were not eligible for the award based upon sustained operations.  It defined terms and provided guidelines for the award based upon the number and types of missions or hours. Twenty-five category I missions (air assault and equally dangerous missions) and accrual of a minimum of 25 hours of flight time while engaged in category I missions was the standard established for which sustained operations were deemed worthy of recognition by an award of the Air Medal.  However, the regulation was clear that these guidelines were considered only a departure point.

	b.  governed award of the Combat Infantryman Badge to Army forces operating in South Vietnam.  This regulation stated that criteria for award of the Combat Infantryman Badge identified the man who trained, lived, and fought as an infantryman and that the Combat Infantryman Badge was the unique award established to recognize the infantryman and only the infantryman for his service. Further, “the Combat Infantryman Badge is not an award for being shot at or for undergoing the hazards of day to day combat.”  This regulation also stated the Combat Infantryman Badge was authorized for award to infantry officers, to enlisted personnel, and to warrant officers who had an infantry specialty/military occupational specialty 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 the Combat Infantryman Badge: 

	a.  there are 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.

	b.  the applicant's infantry MOS and/or his service in Vietnam are not in question.  However, there is no evidence in the available records and he did not submit substantiating evidence that shows he was assigned to an infantry unit or that he was an active participant in ground combat while assigned to an infantry unit.  

	c.  in the absence of official orders or other documentary evidence such as operation reports, after action reports, valor awards, witness statements, or any other evidence that conclusively shows he served with an infantry unit and actively participated in ground combat while assigned to an infantry unit, there is insufficient evidence upon which to base award of the Combat Infantryman badge in this case.

2.  With respect to the Air Medal, there are no general orders available showing the applicant was awarded the Air Medal.  The governing regulation requires a formal recommendation, approval through the chain of command, and announcement in orders for award of the Air Medal.  In the absence of orders or other independent evidence that would confirm he completed the number of missions necessary to be awarded the Air Medal, there is insufficient evidence upon which to base award of the Air Medal in this case.

3.  With respect to his rank/grade:

	a.  the evidence of record shows the applicant was promoted to SGT/E-5.  However, upon conviction by a court-martial, he was reduced to the rank/grade of PVT/E-1.  He was then promoted to PV2/E-2 on 28 July 1971.  He held this rank/grade at the time of his release from active duty.

	b.  there is no evidence in his records and he provides none to show he was promoted to PFC/E-3 after his promotion to PV2/E-2 in July 1971 and on or prior to separation in December 1971.  Therefore, he is not entitled to correction of his DD Form 214 to show a higher grade. 

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)                                         AR20110024193



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ABCMR Record of Proceedings (cont)                                         AR20110024193



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