RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 October 2006
      DOCKET NUMBER:  AR20060003554


      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. W. W. Osborn, Jr.             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Patrick H. McGann, Jr.        |     |Chairperson          |
|     |Mr. David R. Gallagher            |     |Member               |
|     |Mr. Roland S. Venable             |     |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 that his records be corrected to show that he
was awarded the Combat Infantryman Badge in July or August 1944.

2.  The applicant states that he did not receive any documentation when he
was presented the Combat Infantryman Badge, but he has had the badge itself
for over sixty years.

3.  The applicant provides no supporting documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 29 August 1946, the date of the discharge.  The
application submitted in this case is dated 15 February 2006.

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 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 available records show the applicant was inducted on 16 June 1943
and entered active duty on 10 July 1943.  He deployed to the European
Theater of Operations on 16 June 1944 and reached Europe on 29 June 1944.

5.  A 16 January 1945 Pay Roll sheet shows he was paid Combat Infantry Pay
from 1 November 1944 through 23 November 1944, that his Combat Infantryman
Badge had been revoked by the verbal order of the commanding officer on
24 November 1944, and that the revocation was confirmed by General Order
Number 1, Headquarters, 121st Infantry Regiment, dated 5 January 1945.

6.  The Pay Roll sheet also notes that the applicant was convicted by a
general court-martial of desertion and sentenced to total forfeiture of all
pay and allowances, confinement at hard labor, and a dishonorable
discharge.

7.  However, his WD AGO Form 53-55 (Enlisted Record and Report of
Separation-Honorable Discharge) shows he was separated on 29 August 1946
due to demobilization.  Item 32 (Battles and Campaigns) states “NONE.”  His
list of awards (item 33) indicates only the European-African-Middle Eastern
Campaign Medal and the World War II Victory Medal.  A Final Payment Work
Sheet, of the same date, shows he was restored to duty on 27 April 1946,
but does not indicate that he was paid Combat Infantry Pay.

8.  Army Regulation 600-8-22 (Military Awards) and previous awards
regulations have provided for the revocation of combat and special skills
badges upon conviction by a court-martial of desertion in wartime.  Revoked
awards may only be reinstated by Headquarters, Department of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was awarded the Combat Infantryman Badge at some
undeterminable time between 29 June 1944 and 24 November 1944; however, the
badge was officially revoked.

2.  Restoration to duty did not automatically reinstate the applicant’s
revoked awards and the Combat Infantryman Badge should not be shown on his
WD AGO Form 53-55.  To the appropriate degree possible the applicant’s
records do reflect that he was awarded the Combat Infantryman Badge.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 August 1946; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 28 August 1949.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_PHM___  _DRG___  __RSV __  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.




                                  __Patrick H. McGann, Jr. __
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003554                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061011                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1. 107.00|                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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