MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 August 2001                  
	DOCKET NUMBER:   AR2001054785

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

	Mr. Carl W. S. Chun		Director	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Donald P. Hupman, Jr.		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
		 records
	Exhibit B - Military Personnel Records (including
		 advisory opinion, if any)

APPLICANT REQUESTS:  Reconsideration of his earlier appeal to correct his military records by awarding him the Combat Infantryman Badge (CIB). 

APPLICANT STATES:  In effect, that he qualified for the award by having commanded an infantry company in direct combat.  While acting commander, he was serving in an infantry officer’s position in his secondary branch, Infantry.  He encloses the citation for an air medal “which show my actions in hostile territory during my command” and unit orders stating that on 2 May 1968 he assumed command of the Replacement Detachment, 1st Administration Company, 1st Infantry Division.  He also encloses a Table of Organization and Equipment (TO&E), the front page of his Officer Efficiency report (OER) for the period from 27 November 1967 to 28 August 1968, a page of special provisions for the regulatory requirements for the CIB copied for the Americal Division Veterans Association website, and a handwritten description of events for the “period ending 31 July 1968.”

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR2000038384) on 6 July 2000.

The applicant’s submissions are new evidence that requires Board consideration.

The citation for the applicant’s Air Medal states that during the period 6 April 1968 to 18 July 1968 he “…participated in more that twenty-five aerial missions over hostile territory.…”

The TO&E shows that the unit commander’s position called for an Infantry captain.

The OER shows that his rater and indorser were infantry officers.

The regulatory requirements for the CIB as copied from the Americal Division Veterans Association website reads:

e. Special provisions - Republic of Vietnam 
(1) Any officer whose basic branch is other than infantry who, under appropriate orders, has commanded a line infantry (other than a headquarters unit) unit of brigade, regimental, or smaller size for at least 30 consecutive days is deemed to have been detailed in infantry and is eligible for award of the CIB 

notwithstanding absence of a written directive detailing that soldier in the infantry, provided all other requirements for the award have been met. Orders directing the officer to assume command will be confirmed in writing at the earliest practicable date. 
(2) In addition, any officer, warrant officer, or enlisted man whose branch is other than infantry, who under appropriate orders was assigned to advise a unit listed in (4) and (5) below or was assigned as a member of a White Star Mobile Training Team or a member of MAAG-Laos as indicated in f (l) and (2) below will be eligible for award of the CIB provided all other requirements have been met. 
(3) After 1 December 1967 for service in the Republic of Vietnam, noncommissioned officers serving as Command Sergeants Major of infantry battalions and brigades for periods of at least 30 consecutive days in a combat zone are eligible for award of the CIB provided all other requirements have been met. 
4) Subsequent to 1 March 1961, a soldier must have been- 
(a) Assigned as advisor to an infantry unit, ranger unit, infantry type unit of the civil guard of regimental or smaller size, and/or infantry-type unit of the self defense corps unit of regimental or smaller size of the Vietnamese government during any period such unit was engaged in actual ground combat. 
(b) Assigned as advisor of an irregular force comparable to the above infantry units under similar conditions. 
(c) Personally present and under fire while serving in an assigned primary duty as a member of a tactical advisory team while the unit participated in ground combat. 
(5) Subsequent to 24 May 1965, to qualify for the CIB, personnel serving in U.S. units must meet the requirements of e(1) above. Individuals who performed liaison duties with the Royal Thai Army or the Army of the Republic of Korea combat units in Vietnam are eligible for award of the badge provided they meet all other requirements. 

The page of handwritten notes for the “period ending 31 July 1968.” Contains descriptions of various events including one on 6 May 1968, which reads: “Officer of the guard, observed movement in the direct perimeter.  After notifying Support Command that help was needed, their response was to just ‘keep us informed’, I boldly requested artillery fire to be walked along one side of the perimeter, while my men and I opened machine gun and M-16 fire on VC.” 

Army Regulation 600-8-22 prescribes Army policy and procedures concerning awards.  Paragraph 8-6 provides for award of the CIB.  That paragraph states that 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.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision.  If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant served in and was acting commander of a headquarters unit not “a line infantry company.  Additionally, flying over hostile territory and shooting at observed movement along a base perimeter does not qualify as “active ground combat” for award of the CIB.
 
2.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__JNS___  __RTD__  __DPH __  DENY APPLICATION

	Carl W. S. Chun
    Director, Army Board for Correction 
	of Military Records

INDEX

CASE ID	AR2001054785	
SUFFIX		
RECON		
DATE BOARDED	20010828	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	107.00	
2.		
3.		
4.		
5.		
6.