RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            27 MAY 2004
      DOCKET NUMBER:   AR2004106483


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


  The following members, a quorum, were present:

|     |Mr Melvin Meyer                   |     |Chairperson          |
|     |Ms. Regan Smith                   |     |Member               |
|     |Mr. Thomas O'Shaughnessy          |     |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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests award of the Combat Infantryman Badge.

2.  The applicant states, in effect, that he has not “been presented [his]
Combat Infantry Badge” although others in the same division have received
theirs.

3.  The applicant provides a copy of an undated letter from what appears to
be a 36th Engineer Combat Regiment veterans’ association, a copy of his
separation document, and a narrative summary of regimental action between
18 December 1943 and 26 March 1944.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 28 September 1945.  The application submitted in this
case is dated 1 April 2004.

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.

3.  The applicant’s military records are not available to the Board for
review.  A fire destroyed approximately 18 million service members’ records
at the National Personnel Records Center in 1973.  It is believed that the
applicant’s records were lost or destroyed in that fire.  However, there
were sufficient documents remaining in a reconstructed record for the Board
to conduct a fair and impartial review of this case.

4.  The applicant’s separation document indicates that he entered active
duty in December 1942 and arrived in the overseas theater of operations in
May 1943.  He returned to the United States in September 1945 and on 20
September 1945 was discharged by reason of demobilization.

5.  The applicant’s separation document indicates that he held a military
specialty of 605 (machine gunner) at the time of his separation and that he
was assigned





to the 125th Armored Engineer Battalion.  The document also notes that he
was awarded the Army Good Conduct Medal based on orders issued by the 36th
Engineer Combat Regiment.  The document does not indicate that the
applicant had been awarded a Combat Infantryman Badge.

6.  The narrative statement, submitted by the applicant, recounts actions
of an unnamed regiment and its participation in the Anzio campaign (January-
May 1944).  The statement indicates that in February 1944 “the entire
regiment was committed as infantry on the left flank of the beachhead…(and)
for 45 days the regiment held this line.  On the 26th of March the relief
of the regiment by the 5th Division was complete and the regiment reverted
to the corps control for engineer tasks.”  The regiment referred to in the
narrative statement was likely the 36th Engineer Combat Regiment, as the
information is consistent with information contained in a publication from
the Center for Military History which documents the Army’s actions during
the Anzio campaign.

7.  Army Regulation 600-8-22 states that there are basically three
requirements for award of the Combat Infantryman Badge.  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 Combat
Infantryman Badge.

8.  The undated letter from the 36th Engineer Combat Regiment veterans’
association states:

      We have great news!  All the veterans of the 36th Engineers are
      eligible for the Combat Infantry Badge.  I tried to get the award as a
      Regiment but since it is an individual award it must be awarded
      individually.  That means that each seahorse will have to do some of
      the work but not much.


The letter goes on to explain how members of the organization should
request award of the badge, discusses an upcoming reunion, and concludes
“Now make room on your hat for the Combat Infantry Badge….”

9.  Information obtained from the Military Awards Branch at the United
States Army Human Resources Command-Alexandria indicated that an official
at the National Personnel Records Center erroneously issued a Combat
Infantryman Badge to a veteran of the 36th Engineers and they (the
regimental association) then put the information in their newsletter.  The
National Personnel Records





Center subsequently notified that individual of the erroneous issuance.
However, since that time the awards branch has responded to 50 or 60
veterans regarding the issue as has the National Personnel Records Center.
The award branch confirmed that members of the 36th Engineer Combat
Regiment were not eligible for the Combat Infantryman Badge.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent
part, for award of the World War II Victory Medal (WWII Victory Medal).  It
is awarded for service between 7 December 1941 and 31 December 1946, both
dates inclusive. The applicant’s separation document does not reflect
entitlement to that award.

DISCUSSION AND CONCLUSIONS:

1.  Although the evidence indicates that the applicant did hold an infantry
specialty, there is no evidence that he was assigned to an infantry unit,
one of the primary requirements for award of the Combat Infantryman Badge.

2.  The evidence shows that the applicant may have been assigned to the
36th Engineer Combat Regiment at the time he was awarded the Army Good
Conduct Medal and that he was assigned to an engineer element at the time
of his separation from active duty.  Because both units were engineer
elements, he would not have been eligible for the Combat Infantryman Badge,
in spite of the fact that he may have held an infantry specialty.

3.  The information obtained from the Military Awards Branch confirmed
that, unfortunately, the information contained in the undated letter from
the 36th Engineer Combat Regiment association was incorrect and the Combat
Infantryman Badge has not been authorized for members of that regiment.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on28 September 1945, the date of his
separation from active duty.  However, the ABCMR was not established until
2 January 1947.  As a result, 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 the failure to
timely file.




6.  Evidence shows that the applicant’s records contain administrative
error which does not require action by the Board.  Therefore,
administrative correction of the applicant's records will be accomplished
by the Case Management Support Division (CMSD), St. Louis, Missouri, as
outlined by the Board in paragraph 3 of the BOARD
DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__MM___  __RS ___  __TO ___  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 entitlement to the World War II Victory Medal.




            _____Melvin Meyer______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004106483                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040527                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |