RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         2 March 2006
      DOCKET NUMBER:  AR20050012207


      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 was given the CIB just prior to his
release from the service.  He claims he received it during a formation, but
it was never recorded in his record.

3.  The applicant provides a letter from a Lane County Veterans Services
Officer from Eugene, Oregon in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 4 March 1972, the date of his separation.  The application
submitted in this case is dated 5 August 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 2 June 1970.  He was initially trained in and awarded MOS
11C (Infantry Indirect Fire Crewman), and the highest rank he attained
while serving on active duty was sergeant.

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows that
he served in the Republic of Vietnam (RVN) from 29 November 1970 through
22 October 1971.  During his RVN tour, he was serving in Company B, 1st
Battalion, 12th Cavalry Regiment from 9 December 1970 through 7 July 1971
and with Company E of the same organization from 9 July through 22 October
1971.

5.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows
that during his tenure on active duty, he earned the National Defense
Service Medal (NDSM), Vietnam Service Medal (VSM), Air Medal (AM), RVN
Campaign Medal (RVNCM), and Sharpshooter Qualification Badge with Rifle
Bar.
6.  The applicant's Military Personnel Records Jacket (MPRJ) does not
include orders, or other documents indicating that he was ever recommended
for or awarded either the CIB by proper authority.

7.  On 4 March 1972, the applicant was honorably separated after completing
1 year, 9 months, and 3 days of active military service.  Item 24
(Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons
Awarded or Authorized) of the separation document (DD Form 214) he was
issued at this time shows that he earned the following awards while on
active duty:  NDSM; VSM; AM; RVNCM; and Sharpshooter Qualification Badge
with Rifle Bar.  The CIB is not included in the list of awards contained in
Item

8.  The applicant provides a letter for a veterans service officer in
Eugene, Oregon that provides the applicant's Department of Veterans Affairs
(VA) file number.

9.  Army Regulation 600-8-22 (Military Awards) contains the Army’s awards
policy.  Paragraph 2-13 contains guidance on the VSM.  It states, in
pertinent part, that a bronze service star is authorized with this award
for each RVN campaign a member is credited with participating in.  Table B-
1 contains a list of RVN campaigns, and it shows that during his tenure of
assignment, the applicant was credited with participating in the Vietnam
Counteroffensive Phase VII and Consolidation I campaigns.

10.  Paragraph 8-6 of the awards regulation 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.

11.  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.

12.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit
Register) establishes the eligibility of individual members for campaign
participation credit, assault landing credit, and unit citation badges
awarded during the Vietnam Conflict.  It confirms that during his tenure of
assignment in the RVN, the applicant’s unit (1st Battalion, 12th Cavalry
Regiment) was awarded the Valorous Unit Award and RVN Gallantry Cross with
Palm Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to the CIB was carefully
considered.  However, there is insufficient evidence to support this claim.
  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 a qualifying unit, and receiving campaign or battle
credit alone are not sufficient to support award of the CIB.

2.  In this case, the evidence of record shows the applicant held an
infantry MOS and was assigned to a Cavalry Regiment, which while not a
traditional qualifying infantry unit, could have been considered a
qualifying unit in Vietnam.  However, there is no evidence showing that the
applicant and/or this unit performed traditional infantry duties and/or
actively engaged the enemy in ground combat with the unit.  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.


3.  Records show the applicant should have discovered the alleged error or
injustice related to award of the CIB now under consideration on 4 March
1970, the date of his separation.  Therefore, the time for him file a
request for correction of any error or injustice expired on 3 March 1973.
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.

4.  The record confirms that based on his RVN service and campaign
participation, he is entitled to the Valorous Unit Award, RVN Gallantry
Cross with Palm Unit Citation, and 2 bronze service stars with his VSM.

5.  The omission of the awards identified in the preceding paragraph is an
administrative matter that does not require Board action.  As a result, the
Case Management Support Division (CMSD), St. Louis, Missouri will be
requested to make the necessary corrections as outlined in paragraph 3 of
the BOARD DETERMINATION/RECOMMENDATION section below.

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.

3.  The Board determined that administrative error in the records of the
individual should be corrected.  Therefore, the Board requests that the
CMSD-St. Louis administratively correct his records to show he is entitled
to the Valorous Unit Award, Republic of Vietnam Gallantry Cross with Palm
Unit Citation, and
2 bronze service stars with his Vietnam Service Medal; and by providing him
a corrected separation document that includes these awards.




                                  _____William D. Powers____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050012207                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/03/02                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1974/03/04                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |OS Rtn                                  |
|BOARD DECISION          |DENY with Adm Note                      |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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