IN THE CASE OF:
BOARD DATE: 8 November 2012
DOCKET NUMBER: AR20120009077
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 the Combat Infantryman Badge (CIB) and to show that he served with the 3rd Battalion, 22nd Infantry, 25th Infantry Division.
2. The applicant states he served with the 3rd Battalion, 22nd Infantry as a foot Soldier while in Vietnam and participated in combat actions but the CIB and his unit of assignment are not shown on his DD Form 214.
3. The applicant provides a DD Form 214, DA Form 20 (Enlisted Qualification Record), and a Certificate of Participation.
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 applicants 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 applicants 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 on 9 June 1970. Upon completion of initial entry training, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).
3. His DA Form 20 shows in:
a. item 31 (Foreign Service) he served in Vietnam from 22 November 1970 to 16 December 1971;
b. item 38 (Record of Assignments) he served, in chronological order, with Company D, 3rd Battalion, 22nd Infantry, the 52nd Security Detachment, and with Headquarters and Headquarters Company (HHC), 52nd Aviation Battalion while in Vietnam.
4. The CIB is not included in item 41 (Awards and Decorations) of his DA Form 20.
5. Headquarters, 52nd Aviation Battalion, APO 96494, Special Orders Number 321, dated 17 November 1971, directed his reassignment to the U.S. Army Transfer Station, Fort Lewis, WA for the purpose of separation processing.
6. His available military records are void of orders or any other document that indicates he was recommended for or awarded the CIB.
7. He was honorably released from active duty on 17 December 1971. Item
12 (Last Duty Station and Major Command) of his DD Form 214 shows his last duty assignment was HHC, 52nd Aviation Battalion, APO 96494. His DD Form 214 does not include the CIB in item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized).
8. He provided a Certificate of Participation that certifies his service with the 3rd Battalion, 22nd Infantry while in Vietnam.
9. Army Regulation 600-8-22 (Military Awards) states 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.
10. 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 provides standardized policy for the preparation of the DD Form 214. The regulation in effect at the time of the applicant's separation provided the last duty assignment and major command would be enter in item 12 of the DD Form 214.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his DD Form 214 should be corrected to show the CIB and to show that he served with the 3rd Battalion, 22nd Infantry, 25th Infantry Division has been carefully considered.
2. The evidence shows he was awarded an infantry MOS and served with an infantry unit while in Vietnam. However, it does not sufficiently show he engaged in active ground combat while assigned to this unit. In the absence of orders or any other documents indicating he was recommended for or awarded the CIB, there is insufficient evidence for award of the CIB in this case.
4. Evidence also shows that his last duty assignment prior to his separation from the Army was HHC, 52nd Aviation Battalion, APO 96494. Therefore, the entry in item 12 of his DD Form 214 is correct and there is no basis to correct this entry to show a different unit. Additionally, his service with Company D, 3rd Battalion, 22nd Infantry is properly documented in item 38 of his DA Form 20.
5. Based on the foregoing, there is no basis to grant the applicant's 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 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.
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