RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060010980 


	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. Gerard W. Schwartz

Acting Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. William Powers

Chairperson

Mr. Paul Smith

Member

Mr. Jerome Pionk

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 correction of his DD Form 214 (Report of Separation from the Armed Forces of the United States) to show award of the Combat Infantryman Badge.	 

2.  The applicant states, in effect, that he served as a rifleman with the infantry in Korea and that he was awarded the Combat Infantryman Badge in March 1952.  He contends that he was initially assigned to Company E, 21st Infantry Regiment, 24th Infantry Division in Korea; however, he was later assigned to Company L, 224th Infantry Regiment, 40th Infantry Division where he received the Combat Infantryman Badge.     

3.  The applicant provides a letter, dated 21 July 2006, from the National Personnel Records Center, St. Louis, Missouri; a letter, dated 1 August 2006, from a Member of Congress; orders, dated 5 March 1952; an Honorable Discharge Certificate, dated 17 November 1953; a copy of his DD Form 214; and a photograph of four Soldiers.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 17 November 1953.  The application submitted in this case is dated 1 August 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 applicant enlisted on 18 November 1950 for a period of 3 years.  Item 5 (Qualifications/Specialty Number or Symbol) on his DD Form 214 shows the entry, “NA [not applicable].”  He served in Korea and was honorably discharged on 17 November 1953.

5.  Item 4 (Component and Branch or Class) on the applicant’s DD Form 214 shows his branch as Ordnance.  His DD Form 214 shows the National Defense Service Medal, the United Nations Service Medal, the Korean Service Medal with three bronze service stars, and the Good Conduct Medal as authorized awards.

6.  There are no orders for the Combat Infantryman Badge in the available records.  However, Headquarters, 224th Infantry Special Orders Number 48, dated 5 March 1952, show previous orders awarding him the Combat Infantryman Badge were rescinded.

7.  The historical files of Company L, 224th Infantry Regiment, 40th Infantry Division located at the National Archives in College Park, Maryland, were reviewed and failed to produce orders for the Combat Infantryman Badge.  Research also revealed that the Combat Infantryman Badge was on the separation documents of two fellow Soldiers whose names were included on the orders rescinding the applicant’s Combat Infantryman Badge.  The two fellow Soldiers provided letters of support.    

8.  Army Regulation 600-8-22 (Military Awards) provides for award of the Combat Infantryman Badge.  That paragraph states that there are basically three requirements for award of the Combat Infantryman Badge.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.  Specific requirements state, in effect, that an Army enlisted Soldier must have an infantry or special forces specialty, satisfactorily performed duty while assigned or attached as a member of an infantry, ranger or special forces unit of brigade, regimental, or smaller size during any period such unit was engaged in active ground combat.  

9.  The Government of the Republic of Korea issued the Korean War Service Medal (ROK-KWSM) to pay tribute to eligible Korean War veterans for their historic endeavors to preserve the freedom of the Republic of Korea and the free world.  The Department of Defense approved acceptance and wear of the ROK-KWSM.  To qualify for award of the ROK-KWSM, the veteran must have served between 25 June 1950 and 27 July 1953 and been on permanent assignment for 30 consecutive days, or on temporary duty for 60 non-consecutive days, within the territorial limits of Korea, in the waters immediately adjacent thereto or in aerial flight over Korea participating in actual combat operations or in support of combat operations.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record which shows that the applicant was an infantryman who served in an infantry military occupational specialty or served in active ground combat while an assigned member of an infantry unit in Korea.  His DD Form 214 shows that his branch of service was ordnance.  In the absence of orders for the Combat Infantryman Badge or other evidence of record which shows that the applicant met the criteria for award of the Combat Infantryman Badge, the two letters of support provided by the fellow Soldiers are not sufficient as a basis for award of the Combat Infantryman Badge.  Regrettably, there is insufficient evidence on which to base award of the Combat Infantryman Badge in this case.  

2.  The applicant served a period of qualifying service for award of the ROK-KWSM.

3.  Evidence shows that the applicant’s records contain an 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.

4.  Records show the applicant should have discovered the alleged error now under consideration on 17 November 1953; therefore, the time for the applicant to file a request for correction of any error expired on 16 November 1956.  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

WP____  __PS____  __JP____  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 an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show that he was awarded the ROK-KWSM.



___William Powers____
          CHAIRPERSON




INDEX

CASE ID
AR20060010980
SUFFIX

RECON

DATE BOARDED
20070313
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
107.0111
2.
107.0000
3.

4.

5.

6.