RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 May 2007
      DOCKET NUMBER:  AR20060015582


      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      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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, in effect, that item 38 (Record of Assignments)
of his DA Form 20 (Enlisted Qualification Record) be corrected to show he
performed duties as an infantryman during the Korean War.

2.  The applicant states that his records show him performing duties as a
cook from September 1950 (sic) to September 1951.  He started cooking in
November 1951.  He states he was assigned to Company H, 15th Infantry, 3d
Infantry Division as a machine gunner and he was assigned to a machine gun
platoon.  Every time he went up [to Hill 487] they would send him back down
the hill.  On
1 November 1951, his platoon leader called him to a meeting.  Someone had
called to take him out of the platoon.  He did not request to leave, but
when asked he said “yes.”  He soon was told that orders from Division
Command were that no new man would go out front.  He went to Seoul to learn
to light the field range.

3.  The applicant provides one page of his DA Form 20.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on   30 September 1970.  The application submitted in this case
was received in this office on 1 November 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 26 September 1950.  Item
     22 (Military Occupational Specialties) of his DA Form 20 shows he was
awarded military occupational specialty (MOS) 94B (MOS 941.10 at the time)
(Cook) on 21 March 1951.  It also shows he was awarded MOS 11B (Light
Weapons Infantryman) on 26 September 1950 (the date of his enlistment).

4.  The applicant was assigned to Company H, 15th Infantry Regiment, Korea
on 25 September 1951.

5.  Headquarters, 15th Infantry Special Orders Number 284, dated 1 October
1951, awarded the applicant the Combat Infantryman Badge.

6.  The applicant departed Korea on 31 July 1952.  Item 38 of his DA Form
    20 shows he performed duties as a cook the entire time he was in Korea.

7.  A DA Form 145 (Army Extension Course Enrollment Application), signed by
the applicant on 30 July 1959, listed the applicant’s experience as cook or
first cook from 8 March 1951 through 31 May 1958.

8.  The applicant was released from active duty on 30 September 1970 and
placed on the retired list on 1 October 1970.

9.  At the time of the applicant’s separation in 1970, Army Regulation 600-
200, chapter 9, prescribed instructions for preparing and maintaining the
DA Form 20. In pertinent part, it stated that the chapter was applicable to
all enlisted personnel on active duty and all Army Reserve enlisted
personnel assigned to U. S. Army Reserve troop program units.

10.  Army Regulation 600-8-22 (Military Awards) provides for award of the
Combat Infantryman Badge to a Soldier who is an infantryman satisfactorily
performing infantry duties, who is 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.

11.  Army Regulation 635-5 prescribes the separation documents prepared for
Soldiers upon retirement, discharge, or release from active military
service or control of the Army.  In pertinent part, it states that the DD
Form 214 provides a brief, clear-cut record of active Army service at the
time of release from active duty, retirement or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been carefully considered.

2.  It is noted that the applicant was awarded the Combat Infantryman Badge
on 1 October 1951 (5 days after he arrived in Korea and 30 days after he
states he was sent to Seoul to learn cook duties).  At first glance, that
would appear to
indicate he was indeed an infantryman performing infantry duties while he
was with the 15th Infantry.  However, because item 22 of his DA Form 20
shows he was awarded MOS 94B on 21 March 1951 (and clearly shows an
erroneous award date for MOS 11B), it could also mean the applicant was
erroneously awarded the Combat Infantryman Badge.  By the applicant’s own
statement, it does not appear that he actively participated in ground
combat which presupposes that when the enemy attacks, the infantryman
counter-attacks.

3.  The DA Form 20 was prepared and maintained for Active Army and U. S.
Army Reserve enlisted personnel.  As the applicant no longer has a military
status, and he allowed this “error” to remain on his DA Form 20 for almost
       20 years after he departed Korea, the Board is reluctant to
recommend that those records be changed.  The DD Form 214 is the document
used to record the military history of a separated individual.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 September 1970; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on   29 September 1973.  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

__klw___  __phm___  __ksj___  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.




                                  __Kenneth L. Wright___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060015582                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070510                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |100.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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