RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 April 2007
	DOCKET NUMBER:  AR20060014450 


	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

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Curtis Greenway

Chairperson

Mr. Michael J. Flynn

Member

Mr. Edward Montgomery

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 award of the Combat Infantryman Badge.  

2.  The applicant states, in effect, while assigned to the 65th Combat Engineer Battalion during the Korean War from the period 11 July 1950 to 16 May 1951 the battalion fought as an infantry unit.  The applicant further states that the 65th Combat Engineer Battalion morning report should show that the unit received combat infantry pay.

3.  The applicant provides a seven page Department of Veterans Affairs (DVA) Rating Decision, dated 15 February 2006, and a Letter of Support from a former fellow Soldier, dated 7 September 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 31 October 1968.  The application submitted in this case is dated 2 October 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 enlisted in the Regular Army on 29 July 1948 and successfully completed basic training and advanced individual training.  He was awarded specialty number 3729 (Construction Specialist).  

4.  The applicant arrived in Korea with Headquarters and Service Company, 65th Combat Engineer Battalion on 11 July 1950, where he performed duties as a pioneer and truck driver.  He departed Korea on 20 May 1951 and retired on 
31 October 1968.




5.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with the ending period of 31 October 1968 does not show he was awarded the Combat Infantryman Badge.

6.  Army Regulation 600-8-22 (Military Award) prescribes Army policy and procedures concerning awards.  Paragraph 8-6 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.

7. 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.  Evidence of record shows that the applicant was assigned to a Combat Engineer Battalion and his principal duty while in Korea was pioneer and truck driver.  The applicant contends that because he was placed in combat situations he should receive the Combat Infantryman Badge.  Military history contains many examples of non-infantry Soldiers temporarily performing basic infantry duties that all Soldiers are taught as part of their basic combat training.  

2.  However, the three criteria for award of the Combat Infantryman Badge is to be assigned to an infantry unit, perform infantry duties, and hold an infantry specialty.  It is acknowledged that the applicant may have participated in enemy attacks; however, the evidence of record shows that while serving in Korea his primary specialty was 3729 Construction Specialist and he was assigned to an engineer company which makes him ineligible for award of the Combat Infantryman Badge.  The performance of infantry tasks is not solely the basis for the award of the Combat Infantryman Badge.


3.  The applicant met the eligibility criteria for award of the Republic of Korea-Korean War Service Medal.  His DD Form 214 with the period ending 31 October 1968 should be amended to add this award.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 October 1968; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
30 October 1971.  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.

5.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__CG ___  __MJF __  ___EM __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 award of the Republic of Korea-Korean War Service Medal.




____Curtis Greenway__
          CHAIRPERSON




INDEX

CASE ID
AR20060014450
SUFFIX

RECON

DATE BOARDED
12 APRIL 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MR. SCHWARTZ
ISSUES         1.
107.0111.0000
2.

3.

4.

5.

6.