BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20160006766 BOARD VOTE: ___x______ _x______ __x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20160006766 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20060005480, dated 14 November 2006. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. awarding him the Combat Infantryman Badge and b. adding award of the Combat Infantryman Badge to his DD Form 214. ___________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. BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20160006766 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 reconsideration of his earlier request for award of the Combat Infantryman Badge (CIB) through a remand from the U.S. District Court, District of Minnesota, dated 22 March 2016. 2. The applicant filed a complaint in the U.S. District Court, District of Minnesota, on 26 January 2016, challenging the Army Board for Correction of Military Records' (ABCMR) failure to award the CIB under the Administrative Procedures Act. 3. The applicant and the Acting Secretary of the Army submits a Stipulation and Joint Motion for Remand to the ABCMR to allow the ABCMR to consider the issues raised in the applicant's request for reconsideration for award of the CIB. 4. The court issued an order on 22 March 2016 stating the applicant's request for award of the CIB is remanded to the ABCMR for evaluation in accordance with the terms of the applicant's Stipulation and Joint Motion for Remand. 5. The applicant defers additional statements and evidence to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests reconsideration of the applicant's request for award of the CIB. 2. Counsel states: a. The applicant served in the Army in Vietnam between 1968 and 1969. During that time, he served in an infantry unit which conducted combat missions, including search and destroy, air-mobile, cordon, and sweep missions, at least once per week and averaging twice per week. His unit fought enemy forces several times. He participated in combat and received wounds. b. In 2003, he learned for the first time that, despite his satisfactory performance of his duties as an infantryman and participation in combat, he had not been awarded the CIB. His service in Vietnam qualified him for the CIB. c. In 2006, he applied to the ABCMR to correct his military record by including the CIB among his list of awards and medals. His application was denied. He drafted a second application to the Board in 2010 containing additional evidence of his combat service in Vietnam. However, on 4 April 2012, his second applicant was erroneously returned without consideration of the additional evidence. d. In January 2016, he filed a complaint in the U.S. District Court for the District of Minnesota, challenging the Board's failure to award the CIB under the Administrative Procedures Act. On 22 March 2016, a judge remanded his case to the Board. Consistent with that order, the applicant now applies for consideration on the merits. e. Paragraph 8-6 of Army Regulation 600-8-22 (Military Awards) provides that the CIB is awarded to Soldiers who meet three requirements: (1) be an infantryman satisfactorily performing infantry duties; (2) be assigned to an infantry unit during such time as the unit is engaged in active ground combat; and (3) actively participate in such ground combat. Campaign or battle credit alone is not sufficient for award of the CIB. f. Paragraph 8-6(b)(2) further provides that "[a] recipient must be personally present and under hostile fire while serving in an assigned infantry…duty, in a unit actively engaged in ground combat with the enemy." g. The Board's prior decisions and broader case law establish that exposure to booby traps while conducting combat missions qualified as combat. In a 2015 decision, for example, the Board observed that the applicant's "sustained fragment wounds to his legs and arm while on a combat operation when a hostile booby trap detonated. This clearly shows he was personally present and engaging the enemy with his infantry unit." There are a number of other examples where the Board awarded the CIB to Soldiers who were exposed to booby traps in Vietnam. h. Other tribunals and agencies have similarly construed combat to include exposure to booby traps. Both the U.S. Court of Appeals for the Federal Circuit and the U.S. Court of Appeals for Veterans Claims have adopted a definition of "combat" which requires the veteran to have personally participated in events constituting an actual fight or encounter with military foe or hostile unit or instrumentality. The Department of Veterans Affairs uses the same definition. A booby trap is a hostile instrument. i. The Board should correct the applicant's military records because his service establishes all three criteria for issuance of the CIB. He joined the Army on 27 February 1968 and was assigned as an infantryman in military occupational specialty (MOS) 11B (light weapons infantryman). After completing basic training and advanced individual training, he deployed to Vietnam. In Vietnam, he served primarily with Company D, 2d Battalion, 3d Infantry Regiment, 199th Infantry Brigade, from September 1968 to January 1969. He initially served as a rifleman and was promoted to an M-60 machine gunner. At all times during his service as an infantryman in Vietnam, he satisfactorily performed his duties and he ultimately received an honorable discharge from the Army. j. He participated in ground combat during his Vietnam service. During his assignment to Company E, he participated in approximately 40 combat missions, including search and destroy, air-mobile cordon, and sweep missions, at least once per week and averaging twice per week. Additionally, he served ambush or guard duty and he actively participated in combat in Vietnam on numerous occasions. 3. Counsel further states: a. In December 1968, the applicant and his platoon were exposed to multiple booby traps while conducting company-sized ground combat operations. Entries in a Daily Staff Journal or Duty Officer's Log note Company D located and destroyed several enemy bunkers and the Company D destroyed additional enemy bunkers, mortar rounds, a homemade grenade with a trip wire, grenades with trip wires, and one mine. The applicant was struck by shrapnel from a booby trap and suffered minor wounds to his left wrist and abdomen. b. On a daytime mission in November 1968, the applicant's company performed a blocking function, forming a cordon to prevent enemy forces along the river from escaping an attack. His company came under fire from those enemy forces on multiple occasions. He took cover behind a dike to avoid being hit by enemy small-arms fire, and he could hear bullets passing directly over his head. c. On another mission, he was performing ambush duty at night when his position came under heavy machine gun fire. There was limited visibility due to a torrential downpour. The next day, numerous bullet holes could be seen in trees near his position. d. He was also involved in combat on other occasions during his service in Vietnam. In each combat mission, he and his fellow Soldiers faced significant danger. Entries in the Daily Staff Journal or Officer's Duty Log show his company was routinely exposed to booby traps and land mines. From October to December 1968, at least 19 Soldiers from Company D required urgent medical evacuation after being hit by booby traps or mines. e. His direct personal involvement in his company's regular combat missions is established by his own statements, statements from several members of his squad, and his medical records. A fellow infantryman in his squad states the applicant was "in battle" with the squad in late 1968. Another Soldier witnessed the applicant receiving a minor shrapnel wound from an exploding booby trap on 28 December 1968. f. Another member of the applicant's squad confirms his squad participated in daily combat operations. g. The medic in the applicant's squad wrote the applicant carried an M-60 machine gun and his squad participated in many multi-day combat missions. h. A member of the applicant's squad wrote a letter verifying the applicant was in combat in Vietnam. He explained the applicant carried the M-60 machine gun for the squad during combat missions and he should have been awarded the CIB for serving his country in combat. i. The applicant's combat service is also corroborated by his medical records. Just a few days after he was exposed to several booby trap explosions, his medical records show he was admitted to a hospital ward and complained of hearing loss, particularly in his right ear. The doctor made a provisional diagnosis of hearing loss due to high decibel trauma. An audiogram test revealed diminished hearing in his right ear. He states the hearing loss was caused by close exposure to 105-milimeter howitzers during an evening fire mission. The howitzers were located next to the headquarters element for his battalion. Because of his hearing loss, medical staff placed temporary restrictions on his duty assignment. j. Because he repeatedly served in combat during his Vietnam service, the supply sergeant furnished him with a subdued CIB badge to wear on his combat fatigues. He wore the CIB for the remainder of his tour of duty in Vietnam. k. In or around January 1969, he was temporarily away from combat duties due to medical problems. After his medical problems were inadequately treated in the field, he was transferred to a hospital in Long Binh, Vietnam, and then returned to the United States. l. After his transfer to the hospital, the rest of his squad was involved in a helicopter crash. Upon conclusion of their service in Vietnam, every member of the applicant's squad was awarded the CIB. Because he was separated from the remainder of his squad when their service concluded, he was not awarded the CIB. m. The applicant satisfied each CIB criterion during his Vietnam service and should have received the CIB pursuant to Army Regulation 600-8-22. First, the Board previously recognized he possessed and served in an infantry MOS in Vietnam. Second, he was assigned to Company D, 2d Battalion, 3d Infantry Regiment, 199th Infantry Brigade. This is an infantry unit for the purposes of Army Regulation 600-8-22. The Daily Staff Journal or Duty Officer's Logs demonstrate that Company D, 2d Battalion, 3d Infantry Regiment, 199th Infantry Brigade, was engaged in active ground combat from at least September to December 1968. Finally, his statements, the statements submitted by his squad members, and his medical records all establish he actively participated in ground combat. 4. Counsel provides: * ABCMR Record of Proceedings, dated 14 November 2006 * letter from the applicant, dated 3 June 2010 * applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * applicant's service personnel records * applicant's DA Form 20 (Enlisted Qualification Record) * copies of the applicant's Vietnam unit's Daily Staff Journal or Duty Officer's Log, dated October 1968 to December 1968 * eyewitness statements from fellow Soldiers * letter from the ABCMR, dated 4 April 2012 * applicant's complaint to the U.S. District Court, District of Minnesota, dated 26 January 2016 * applicant's supplemental declaration, dated 10 May 2016 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20060005480 on 14 November 2006. 2. Counsel provided the following evidence that was not previously considered by the Board, which warrants consideration at this time: * copies of the applicant's Vietnam unit's Daily Staff Journal or Duty Officer's Log, dated October 1968 to December 1968 * eyewitness statements from fellow Soldiers * applicant's self-authored supplemental declaration, dated 10 May 2016 3. The applicant was inducted into the Army of the United States on 27 February 1968. He completed his training and was awarded MOS 11B. 4. His DA Form 20 shows he served in MOS 11B in Vietnam as follows: * as a rifleman assigned to Company D, 4th Battalion, 12th Infantry Regiment, from 3 August 1968 to 14 August 1968 * as a rifleman assigned to Headquarters and Headquarters Company, 199th Infantry Brigade, from 15 August 1968 to 29 September 1968 * as a rifleman and machine gunner assigned to Company D, 2d Battalion, 3d Infantry Regiment, 199th Infantry Brigade, from 30 September 1968 to 8 February 1969 5. Counsel provided: a. a Daily Staff Journal or Duty Officer's Log for 2d Battalion, 3d Infantry Regiment, 199th Infantry Brigade, dated 5 October 1968, showing Company D had one Soldier wounded in action by a booby trap; b. a Daily Staff Journal or Duty Officer's Log for 2d Battalion, 3d Infantry Regiment, 199th Infantry Brigade, dated 12 October 1968, showing Company D: * located a body with fragment wounds * had three Soldiers wounded in action by a mine * destroyed a booby trap c. a Daily Staff Journal or Duty Officer's Log for 2d Battalion, 3d Infantry Regiment, 199th Infantry Brigade, dated 16 October 1968, showing Company D: * destroyed a booby trap * requested a dust-off (aeromedical evacuation) for four Soldiers wounded in action by a land mine d. a Daily Staff Journal or Duty Officer's Log for 2d Battalion, 3d Infantry Regiment, 199th Infantry Brigade, dated 3 November 1968, showing Company D: * requested an urgent dust-off for three Soldiers wounded in action * indicated personnel were wounded by a land mine * destroyed one booby trap * requested an urgent dust-off for two Soldiers wounded in action by a booby trap * reported receiving rounds as the dust-off was about to set down * had additional Soldiers wounded in action by a booby trap * reported and individual wounded from a long range projectile * found one grenade with trip wire e. a Daily Staff Journal or Duty Officer's Log for 2d Battalion, 3d Infantry Regiment, 199th Infantry Brigade, dated 27 November 1968, showing Company D: * requested urgent dust-off for a Soldier wounded by a booby trap * reported an individual would by land mine f. a Daily Staff Journal or Duty Officer's Log for 2d Battalion, 3d Infantry Regiment, 199th Infantry Brigade, dated 2 December 1968, showing Company D: * spotted flashes in the distance * reported three Soldiers wounded in action g. a Daily Staff Journal or Duty Officer's Log for 2d Battalion, 3d Infantry Regiment, 199th Infantry Brigade, dated 28 December 1968, showing Company D: * located and destroyed a bunker and grenade * located and destroyed three bunkers * requested an urgent dust-off for two Soldiers wounded in action * destroyed mortar rounds * destroyed a bunker * destroyed four grenades and a mine 6. Item 41 (Awards and Decorations) of his DA Form 20 does not show the CIB as an authorized award. 7. On 26 February 1970, he was honorably released from active duty. 8. His DD Form 214 shows he was awarded or authorized the: * National Defense Service Medal * Vietnam Service Medal * Republic of Vietnam Campaign Medal with Device (1960) * Army Good Conduct Medal * Expert Marksmanship Qualification Badge with Machine Gun Bar (M-60) * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) * Marksman Marksmanship Qualification Badge with Pistol Bar (.45 caliber) and Rifle Bar (M-16) 9. There are no orders for the CIB in the applicant's available records. 10. On 14 November 2006, the ABCMR denied his request for award of the CIB. The ABCMR determined the evidence presented was insufficient to show he participated in active ground combat. 11. Counsel further provided: a. a statement from a fellow Soldier during the time in question, dated 10 April 2007, attesting: * the applicant was in combat in Vietnam * he carried the M-60 machine gun for the squad during combat missions * he should have been awarded the CIB b. a statement from a fellow Soldier during the time in question, dated 23 June 2008, attesting: * he served with the applicant in Vietnam * the applicant served as a rifleman and machine gunner * they performed combat operations missions two to three times per week * the applicant served in the field and was in battle c. a statement from a squad leader during the time in question, dated 25 June 2008, attesting: * they conducted combat missions daily * the applicant carried the M-16 rifle and M-60 machine gun * the applicant deserves the CIB 12. On 4 April 2012, the ABCMR reviewed the applicant's request for reconsideration for award of the CIB. The ABCMR staff determined his request for reconsideration was not received within 1 year of the ABCMR's original decision and returned his request for reconsideration without action. At that time his records were corrected to show award of the Meritorious Unit Commendation, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation. 13. Counsel provided a supplemental declaration from the applicant, dated 10 May 2016, which states: a. During his time in Vietnam, he served as an infantryman in MOS 11B assigned to an infantry unit. b. Because he served in active ground combat, he was given a subdued CIB to wear on his combat fatigues. The fatigues were issued by the supply sergeant and he wore the CIB during his tour of duty in Vietnam. c. He personally participated in and was present for approximately 40 combat missions, including search and destroy, air mobile, cordon, and sweep missions, at least once per week and averaging twice per week. When he was not performing combat missions, he served on ambush or guard duty. d. During a daytime mission in November 1968, his company performed a blocking function, forming a cordon to prevent enemy forces along the river from escaping an attack by allied Republic of Korea troops on the other side of the river. His company came under fire from those enemy forces on multiple occasions. He took cover behind a dike to avoid being hit by enemy small arms fire. He could hear bullets passing directly over his head. e. While he was performing combat missions, booby traps were a constant threat. On 28 December 1968, two members of his unit suffered serious injuries from two separate booby traps. When the second booby trap exploded, he was approximately 4 feet away. He was positioned one guy away from a Soldier who was injured. He was struck by shrapnel from the booby trap explosion and sustained minor wounds to his left wrist and abdomen. Even to this day, he has a noticeable depression on his left wrist. He was only 30 feet away from the first booby trap explosion earlier that day, but that explosion did not injure him. f. On 1 January 1969, 4 days after he was exposed to several booby trap explosions, he received medical treatment at a hospital in Long Binh because of medical issues that could not be treated in the field. At the hospital, he told the medical staff he was having trouble hearing. This injury was incurred at the 105-milimeter howitzer fire base located next to the fishnet factory, which was the battalion headquarters. The injury was caused by being too close to the 105-milimeter howitzers during an evening fire mission. His squad was billeted in the open under the stars, halfway between the fishnet factory and the 105-milimeter howitzer firebase. Shortly after his arrival at the hospital, he was sent home to the United States. g. Every other member of his squad was awarded the CIB. However, because he was separated from his squad when their service concluded, he was not officially awarded the CIB he earned. REFERENCES: 1. Army Regulation 600-8-22 provides that the CIB is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry MOS. a. A Soldier must meet the following three requirements for award of the CIB: * be an infantryman satisfactorily performing infantry duties * be assigned to an infantry unit during such time as the unit is engaged in active ground combat * actively participate in such ground combat – campaign or battle credit alone is not sufficient b. One of the specific eligibility criteria for the CIB requires that a recipient must be personally present and under hostile fire while serving in an assigned infantry or special forces primary duty in a unit actively engaged in ground combat with the enemy. Battle or campaign participation credit alone is not sufficient; the unit must have been in active ground combat with the enemy during the period. c. The definition of the requirement to be "engaged in active ground combat" has generated much dialogue over the years as to the original intent of the CIB. The 1943 War Department Circular required infantrymen to demonstrate "satisfactory performance of duty in action against the enemy." The operative words "in action" connoted actual combat. A War Department determination in October 1944 specified that "action against the enemy" for purposes of award of the CIB was to be interpreted as "ground combat against enemy ground forces." In 1948, the regulation governing badges stipulated that "battle participation credit is not sufficient; the unit must have been in contact with the enemy." This clearly indicated that an exchange of hostile fire or equivalent personal exposure was the intent of the Army leadership. In 1963 and 1965, Headquarters, Department of the Army, 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." U.S. 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. 2. Army Regulation 600-8-22 provides that the Meritorious Unit Commendation is awarded to units for exceptionally meritorious conduct in the performance of outstanding services for at least 6 continuous months during the period of military operations against an armed enemy occurring on or after 1 January 1944. Units based in the continental United States are excluded from this award, as are other units outside the area of operations. 3. Army Regulation 600-8-22 provides that the unit citation of the Republic of Vietnam Gallantry Cross is awarded by the Vietnamese government for valorous combat achievement. It is awarded in four degrees as follows: * with Palm – to a unit which is cited before the Armed Forces * with Gold Star – to a unit which is cited before a corps * with Silver Star – to a unit which is cited before a division * with Bronze Star – to a unit which is cited before a regiment or brigade 4. Army Regulation 600-8-22 provides that the unit citation of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation is awarded by the Vietnamese government for meritorious service. 5. U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) provided for award of the CIB during the Vietnam era. Appendix V stated the CIB was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11D, 11F, 11G, or 11H. 6. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam. a. The 4th Battalion, 12th Infantry Regiment, was awarded the: * Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 19 June 1968 to 31 July 1970 * Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 12 December 1966 to 31 August 1970 b. Headquarters and Headquarters Company, 199th Infantry Brigade, was awarded the: * Meritorious Unit Commendation for the period 31 January 1968 to 15 June 1969 * Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 19 June 1968 to 31 July 1970 * Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 12 December 1966 to 31 August 1970 DISCUSSION: 1. Counsel contends the applicant participated in active ground combat during his Vietnam service which qualifies him for award of the CIB. 2. The Daily Staff Journal or Duty Officer's Logs clearly show Company D, 2d Battalion, 3d Infantry Regiment, 199th Infantry Brigade, was engaged in active ground combat from October to December 1968 during the applicant's period of assignment. 3. Department of the Army Pamphlet 672-3 shows his Vietnam units were cited for award of Meritorious Unit Commendation (awarded to units for exceptionally meritorious conduct in the performance of outstanding services for at least 6 continuous months during the period of military operations against an armed enemy), Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation during his period of assignment. 4. The evidence of record shows he was awarded MOS 11B and was performing infantry duties while assigned to an infantry unit in Vietnam during such time as the unit was engaged in active ground combat. 5. Given the extensive combat operations of his unit while he was assigned, multiple eyewitness accounts, operational logs, and the credible explanation as to why he was not awarded the CIB when other members of his unit were, it is more likely than not that he qualified for award of the CIB. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006766 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160006766 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2