RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 September 2005 DOCKET NUMBER: AR20050001811 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: Ms. Shirley L. Powell Chairperson Mr. Robert Rogers Member Mr. Jeanette R. McCants 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 should have been awarded the CIB based on his combat service in the Republic of Vietnam (RVN) in military occupational specialty (MOS) 11B (Infantryman). 3. The applicant provides a copy of his separation document (DD Form 214) in support of his application. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged error or injustice that occurred on 13 December 1967. The application submitted in this case is dated 27 January 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 that he was inducted in the Army and entered active duty on 27 December 1965. He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman), 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 he served in the RVN from 3 June 1966 through 23 May 1967. During his RVN tour, he was assigned to the Military Assistance Command, Vietnam (MACV), performing duties in MOS 11B, as a security guard. Item 41 (Awards and Decorations) shows he earned the following awards during his active duty tenure: National Defense Service Medal (NDSM), Vietnam Service Medal (VSM) with 1 bronze service star and RVN Campaign Medal. 5. The applicant’s Military Personnel Records Jacket (MPRJ) is void of any orders, or other documents indicating he was ever recommended for, or awarded the CIB by proper authority. 6. On 13 December 1967, the applicant was honorably separated at the expiration of his term of service. The DD Form 214 he was issued shows he completed a total of 1 year, 11 months and 17 days of active military service. Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he earned the following awards during his active duty tenure: NDSM, VSM with 1 bronze service star and RVN Campaign Medal. 7. Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards. Paragraph 2-13 of the awards regulation contains guidance on award of the VSM and it states, in pertinent part, that a bronze service star is authorized with this award for each campaign a member is credited with participating in while serving in the RVN. 8. Chapter 8 of the awards regulation contains guidance on the CIB. It states, in pertinent part, that there are basically three requirements for award of the CIB. The Soldier must have an infantry MOS, must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size, and must have actively participated when the unit was engaged in active ground combat. 9. 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, his unit (MACV) earned the RVN Gallantry Cross with Palm Unit Citation, and campaign credit was granted for the Vietnam Counteroffensive Phase I and Vietnam Counteroffensive Phase II campaigns. DISCUSSION AND CONCLUSIONS: 1. The applicant’s claim of entitlement to the CIB and the supporting evidence he submitted were carefully considered. However, in order to support award of the CIB, there must be evidence not only that the member held an infantry MOS, but also that he served in a qualifying infantry unit of brigade, regimental or smaller size, and was present with the unit at a time when it engaged in active ground combat, and that he actively participated in such ground combat. 2. The evidence of record in this case, while showing the applicant held an infantry MOS, does not indicate he served in qualifying infantry unit and actively participated with that unit in ground combat. The record confirms he served in the MACV, performing duties as a security guard. 3. The CIB is not included in the list of awards contained in Item 41 of the applicant’s DA Form 20, or in the list of authorized awards contained on his DD Form 214, which he authenticated with his signature on the date of his separation. This signature, in effect, was his verification that the information contained on the separation document, to include the list of awards, was correct at the time it was prepared and issued. 4. Absent any evidence confirming the applicant’s active participation in ground combat with his qualifying infantry unit of brigade, regimental or smaller size, the regulatory burden of proof necessary to support award of the CIB has not been satisfied in this case. 5. 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. 6. Records show the applicant should have discovered the alleged error or injustice related to award of the CIB on 13 December 1967. Thus, the time for him to file a request for correction of any error or injustice expired on 12 December 1970. However, 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. 7. The evidence does show that based on his service and campaign participation in the RVN, the applicant is entitled to the RVN Gallantry Cross with Palm Unit Citation and 2 bronze service stars with his VSM. The omission of these awards from his record and separation document is an administrative matter that does not require Board action. Thus, the Case Management Support Division (CMSD), St. Louis, Missouri will make the corrections outlined in paragraph 3 of the BOARD DETERMINATION/RECOMMENDATION section below. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___SLP__ __RLD__ __JRM __ 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 the records of the individual concerned to show his entitlement to the 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. ____Shirley L. Powell_____ CHAIRPERSON INDEX CASE ID AR20050001811 SUFFIX RECON DATE BOARDED 2005/09/13 TYPE OF DISCHARGE HD DATE OF DISCHARGE 1967/12/13 DISCHARGE AUTHORITY AR 635-200 DISCHARGE REASON ETS BOARD DECISION DENY with Admin Note REVIEW AUTHORITY Mr. Chun ISSUES 1. 46 107.0000 2. 3. 4. 5. 6.