RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 November 2007
	DOCKET NUMBER:  AR20070008396 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. James Anderholm

Chairperson

Mr. Lester Echols

Member

Mr. Jeffrey Redmann

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, correction of his DD Form 214 (Report of Separation from the Armed Forces of the United States) to show that he was awarded the Combat Infantryman Badge and correction to the spelling of his last name, "B_____e."

2.  The applicant states, in effect, that he was awarded the Combat Infantryman Badge; however, it was omitted from his DD Form 214 and his last name is misspelled. 

3.  The applicant provides a copy of his DD Form 214 in support of his request.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Records available to the Board were obtained from alternate sources.  His DD Form 214 (Report of Separation from the Armed Forces of the United States) shows that he entered active duty on
18 January 1951, and was trained in military occupational specialty (MOS), 4812, as a heavy weapons infantryman.

3.  The applicant was promoted to PFC (private first class) on 1 September 1951. He completed 1 year, 4 months, and 28 days of foreign service.  He continued to serve until he was released from active duty on 14 November 1952. He was transferred to the Enlisted Reserve Corps.



4.  Item 4 (Component and Branch or Class), of his DD Form 214, shows the entry "AUS Inf" (Army of the United States, Infantry), and item 28 (Most Significant Duty Assignment), shows the entry Co "D" 160th Inf Regt 40th Div (Company D, 160th Infantry Regiment, 40th Division).  

5.  The applicant's DD Form 214 shows he was awarded the Korean Service Medal with one bronze service star, the United Nations Service Medal, and the Army of Occupation Medal with Japan clasp.  His DD Form 214 does not show the Combat Infantryman Badge as an authorized award.

6.  There are no orders in the available personnel records to show that he was awarded the Combat Infantryman Badge. 

7.  Item 1 (Last Name-First Name-Middle Name), of his DD Form 214, shows his last name as "B______e."  At the time of his release from active duty, he authenticated his DD 214 by spelling his last name as "B_____c.  There are no documents in the available record to validate the spelling of the last name.

8.  Army Regulation 600-8-22 (Military Awards) 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.  Specific requirements state, in effect, that an Army enlisted Soldier must have an infantry specialty, satisfactorily performed duty while assigned or attached as a member of an infantry unit of brigade, regimental, or smaller size during any period such unit was engaged in active ground combat.  A recipient must be personally present and under hostile fire while serving in an assigned infantry primary duty, in a unit actively engaged in ground combat with the enemy.

9.  Army Regulation 600-8-22 (Military Awards) states that the Republic of Korea War Service Medal is awarded to members of the U.S. Armed Forces who served in Korea and adjacent waters between 25 June 1950 and 27 July 1953.  The service prescribed must have been performed as follows:  

	(1) while on permanent assignment;

	(2) while on temporary duty within the territorial limits of Korea or on waters immediately adjacent thereto for 30 consecutive days or 60 nonconsecutive days; or 
	(3) while as crew members of aircraft, in aerial flight over Korea participating in actual combat operations or in support of combat operations. 

10.  Army Regulation 600-8-22 provides, in pertinent part, that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954, 1 January 1961 through 14 August 1974, 2 August 1990 through 30 November 1995, and 11 September 2001 to a date to be determined.

DISCUSSION AND CONCLUSIONS:

1.  To be entitled to award of the Combat Infantryman Badge, the evidence must show that an applicant held and served in an infantry MOS while assigned or attached to an infantry unit of brigade, regimental, or smaller size, and must have served in active ground combat while assigned or attached to this infantry unit.

2.  The applicant’s DD Form 214 shows that he served as a heavy weapons infantryman, in MOS 4812, with Company D, 160th Infantry Regiment, 40th Infantry Division, while serving overseas.  There is no evidence, and the applicant has provided none, to show that he served in actual ground combat or to show that he personally come under fire while serving overseas.  Therefore, there is insufficient evidence to support an award of the Combat Infantryman Badge.  He is not entitled to correction of his records to show that he was awarded the Combat Infantryman Badge.

3.  The applicant's DD Form 214 shows his last name as "B______e" and he signed his name as "B____c, without the last character of "e" on his last name.  His military records are unavailable for review and he has provided no evidence in the form of a certified birth certificate or court order to verify the spelling of his last name.  Accordingly, it would not be appropriate to grant relief in this issue at this time.

4.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  The data contained in those records should reflect the conditions and circumstances that existed at the time the records were created and under which the applicant served.

5.  The evidence shows the applicant served during the qualifying period for award of the Republic of Korea War Service Medal.  He is therefore entitled to this award and to have it added to his DD Form 214.

6.  The evidence shows that the applicant served during a qualifying period for award of the National Defense Service Medal.  He is therefore entitled to this award and to have it added to his DD Form 214.

7.  Evidence shows that the applicant’s available 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 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___A____  ___e____  ___JR___  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 available records of the individual concerned for award of the Combat Infantryman Badge and correction to his last name to the applicant's DD Form 214.

2.  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 available records of the individual concerned to show award of the Republic of Korea War Service Medal; and the National Defense Service Medal, and adding these awards to DD Form 214.




______James E. Anderholm_______
          CHAIRPERSON




INDEX

CASE ID
AR20070008396
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071101
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19521114
DISCHARGE AUTHORITY
AR 615-365
DISCHARGE REASON

BOARD DECISION
DENY//GRANT
REVIEW AUTHORITY

ISSUES         1.
107
2.

3.

4.

5.

6.