RECORD OF PROCEEDINGS


         IN THE CASE OF
        

         BOARD DATE: November 25, 2003
         DOCKET NUMBER: AR2003085210

         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. Klaus P. Schumann		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Ms. Lana E. McGlynn		Member
Ms. Yolanda Maldonado		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

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

1. The applicant requests, through a retired infantry Colonel serving as his counsel, correction of his military records to show the Combat Infantryman Badge.

2. The applicant states that the Combat Infantryman Badge was erroneously omitted from his discharge documents.

3. The applicant provides a copy of a WD AGO Form 53-55 (Enlisted Record and Report of Separation); an honorable discharge certificate, dated 27 June 1946; an undated statement of service for World War II; and articles which recount the actions of the applicant's unit during World War II.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE :
2. Counsel states that his client served with a rifle company in Europe and that the Combat Infantryman Badge was erroneously omitted from his WD AGO
55-53. Counsel contends that the applicant had "no reason to check or be concerned" about the entries on his discharge documents until he was advised that he could receive the Bronze Star Medal if he had been awarded the Combat Infantryman Badge. Counsel further states that his client served with Company C, 394th Infantry Regiment, 99th Division in early 1945 until the war ended, was wounded in action, and received the Purple Heart. Counsel also contends that "many of the WWII veterans had no reason to check the details of their discharge forms and there were many errors made."
3. Counsel provides, on behalf of his client, a copy of a WD AGO Form 53-55 (Enlisted Record and Report of Separation), an honorable discharge certificate, dated 27 June 1946, an enhanced undated statement of service for World War II and articles which recount the actions of the applicant's unit during World War II.

CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of error which occurred on 27 June 1946. The application submitted in this case is dated 10 January 2003.

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 limitation 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. However, in view of the fact that the board was not established until 2 January 1947 the 3 year period in which to file an application for correction of military records expired 3 years from the date the Board was established.

3. The applicant's military records are not available to the Board. This case is being considered using reconstructed records, which primarily consist of a WD AGO Form 53-55 (Enlisted Record and Report of Separation); an honorable discharge certificate, dated 27 June 1946; and a War Department Form 372A (Final Payment - Worksheet).
4. The applicant's records show that he entered active duty on 20 June 1944 in Military Occupational Specialty (MOS) 055 (General Clerk). Upon completion of training he was reassigned to the European African Middle Eastern Theater where he served for the period 8 February 1945 through 28 May 1946. He was honorably separated from active duty on 27 June 1946.
8. War Department Circular 269-1943 established the Combat Infantryman Badge and the Expert Infantryman Badge to recognize and provide an incentive to infantrymen. The Expert Infantryman Badge was to be awarded for attainment of certain proficiency standards or by satisfactory performance of duty in action against the enemy. The Combat Infantryman Badge was awarded for exemplary conduct in action against the enemy. War Department Circular 186-1944 further provided that the Combat Infantryman Badge was to be awarded only to infantrymen serving with infantry units of brigade, regimental or smaller size. Additionally, World War II holders of the Combat Infantryman Badge received a monthly pay supplement known as combat infantry pay and holders of the Expert Infantryman Badge were entitled to expert infantry pay. Therefore, soldiers had economic as well as intangible reasons to ensure that their records were correct. Thus, pay records are frequently the best available source to verify entitlement to this award. The Awards Branch, Total Army Personnel Command, has advised in similar cases that, during World War II, the Combat Infantryman Badge was normally awarded only to enlisted individuals who served in the following positions:

a. Light machine gunner (604)
b. Heavy machine gunner (605)
c. Platoon sergeant (651)
d. Squad leader (653)
e. Rifleman (745)
f. Automatic rifleman (746)
g. Heavy weapons NCO (812)
h. Gun crewman (864)

9. Army Regulation 600-8-22 also provides, in pertinent part, that the Bronze Star Medal is awarded for heroism and for meritorious achievement or service in military operations against an armed enemy. The Bronze Star Medal is authorized for each individual who was cited in orders or awarded a certificate for exemplary conduct in ground combat between 7 December 1941 and 2 September 1945 or whose achievement or service, during that period, was confirmed by documents executed prior to 1 July 1947. An award of the Combat Infantryman Badge or the Combat Medical Badge is considered to be a citation in orders. This means, in effect, that the Bronze Star Medal is to be awarded to individuals who were authorized either badge for service during World War II.

10. Records show the applicant should have discovered the error or injustice now under consideration on 27 June 1946. Based on establishment of the Board on 2 January 1947, the time for the applicant to file a request for correction of any error or injustice expired on 1 January 1950. However, the applicant did not 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 file in this case


DISCUSSION AND CONCLUSIONS :

1. The applicant's counsel contends that the applicant had "no reason to check or be concerned" about the entries on his discharge documents. However, records show that, on 27 June 1946, the applicant reviewed and authenticated his DD Form 214 covering his service during World War II.

2. The applicant's final pay worksheet shows that he did not receive combat infantry pay.





3. The applicant did not posses an infantry Military Occupational Specialty.


BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

_ LEM ___ __ YM ___ ___ RO ____ DENY APPLICATION



The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not 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.




                  _ Raymond V. O’Connor
                  CHAIRPERSON

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INDEX

CASE ID	AR2003085210
SUFFIX
RECON
DATE BOARDED	2003/11/25
TYPE OF DISCHARGE	HD,
DATE OF DISCHARGE	1946/06/27
DISCHARGE AUTHORITY	AR
DISCHARGE REASON
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.