RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         3 March 2006
      DOCKET NUMBER:  AR20050010410


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Ms. Peguine M. Taylor             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, award of the Combat Infantryman
Badge (CIB).

2.  The applicant states, in effect, he served in an infantry unit in
combat while serving in the Republic of Vietnam (RVN), but he never
received the CIB.

3.  The applicant provides unit historical records in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 9 September 1968.  The application submitted in this case
is dated
8 June 2005.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's record shows he was inducted into the Army and entered
active duty on 3 October 1966.  He was trained in and awarded military
occupational specialty (MOS) 11C (Assistant Gunner), and the highest rank
he attained while serving on active duty was specialist four (SP4).

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows that
he served in the RVN for a little over 1 month, from 4 October through 24
November 1967.  During his RVN tour, he was assigned to Company C, 1st
Battalion, 46th Infantry Regiment, 198th Infantry Brigade, performing
duties in MOS 11C as an ammunition bearer.  He was medically evacuated to
Japan on 24 November 1967 and to Hawaii on 3 December 1967.  Item 40
(Wounds) is blank, and
Item 41 (Awards and Decorations) shows that he earned the National Defense
Service Medal (NDSM) and Vietnam Service Medal (VSM) while serving on
active duty.

5.  The applicant's Military Personnel Records Jacket (MPRJ) does not
include orders, or other documents indicating that he was ever recommended
for or awarded the CIB by proper authority.

6.  On 2 October 1970, the applicant was honorably separated at the
expiration of his term of service (ETS).  The separation document (DD Form
214) he was issued, as amended by a 29 November 2004 correction (DD Form
215), shows that he earned the following awards during his tenure on active
duty:  NDSM; VSM; RVN Campaign Medal with 1960 Device; and RVN Gallantry
Cross with Palm Unit Citation.

7.  The applicant provides six situation reports of his unit submitted
between
12 and 23 November 1967.  These reports outline activities by the regiment;
however, all report negative contact with the enemy, and provide no
indication that the unit and/or the applicant participated in ground combat
with enemy forces during this period.

8.  Army Regulation 600-8-22 (Military Awards) contains the Army’s awards
policy.  Paragraph 8-6 contains guidance on award of the CIB.  It states,
in pertinent part, that there are basically three requirements for award of
the CIB.  The Soldier must be an infantryman satisfactorily performing
infantry duties, must be assigned to an infantry unit during such time as
the unit is engaged in active ground combat, and must actively participate
in such ground combat.  Campaign or battle credit alone is not sufficient
for award of the CIB.

9.  Paragraph 8-6b of the awards regulation further states, in pertinent
part, that the definition or requirement to be "engaged in active ground
combat" has generated much dialogue over the years as to the original
intent of the CIB.  In 1963 and 1965 Department of the Army (DA) messages
to the senior Army commander in the Southeast Asia theater of operations
authorized award of the CIB to otherwise qualified personnel "provided they
are personally present and under fire."  United States Army Vietnam
regulations went so far as to require documentation of the type and
intensity of enemy fire encountered by the Soldier. The intended
requirement to be "personally present and under fire" has not changed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to the CIB based on his
combat service with an infantry unit in the RVN, and the supporting
evidence he submitted, were carefully considered.  However, there is
insufficient evidence to support this claim.

2.  By regulation, in order to qualify for the CIB, a member must not only
hold an infantry MOS and serve with a qualifying infantry unit, there must
also be evidence that he was personally present with the qualifying
infantry unit when it was engaged in active ground combat, and that that he
actively participated in such ground combat.  Holding an infantry MOS,
being assigned to qualifying unit and receiving campaign or battle credit
alone are not sufficient to support award of the CIB.

3.  In this case, the evidence of record shows the applicant held an
infantry MOS and was assigned to a qualifying infantry unit.  However,
there is no evidence showing that the applicant and/or this unit actively
engaged the enemy in ground combat during his tenure of assignment.
Further, the situation reports provided by the applicant all indicate
negative contact with enemy forces during November 1967.  Therefore, given
his record is void of any documentary evidence showing he was ever awarded
the CIB by proper authority, the regulatory burden of proof necessary to
support award of the CIB has not been satisfied in this case.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 September 1968, the date of his
separation.  Therefore, the time for him to file a request for correction
of any error or injustice expired on 8 September 1971.  He failed to file
within the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___WDP_  __JLP___  ___PMT _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____William D. Powers____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050010410                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/03/02                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1968/09/09                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |OS Ret                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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