IN THE CASE OF:	  

	BOARD DATE:	  26 June 2008

	DOCKET NUMBER:  AR20070015028 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that all of his campaign/battle stars be included on his Report of Separation (DD Form 214) for the period covering 29 April 1949 through 9 August 1951.  He also requests award of the Combat Infantryman Badge.

2.  The applicant states, in effect, that he participated in five campaigns during his enlistment from 29 April 1948 through 9 August 1951 and his DD Form 214 should be amended to reflect the campaigns in which he participated.

3.  The applicant provides in support of his application, a summary pertaining to the 2nd Chemical Mortar Battalion during the Korean War, which includes a list of Korean War Campaigns; and a copy of his DD Form 214.

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 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 that were obtained from alternate sources to conduct a fair and impartial review of this case.

3.  On 29 April 1948, the applicant enlisted in the Army in Charlestown, West Virginia, for 3 years.  He successfully completed his training as a heavy infantry weapons leader.

4.  After completing 3 years, 3 months and 11 days of total active service, the applicant was honorably discharged on 9 August 1951, at the expiration of his term of service.  He was retained in the service 101 days for the convenience of the government.

5.  The DD Form 214 that he was furnished at the time of his discharge shows that he was awarded the Korean Service Medal w/two Battle Stars, the Army Good Conduct Medal and one Overseas Service Bar.  The applicant's DD Form 214 for this period is barely legible and it is unclear as to the amount of his foreign and/or sea service.

6.  The applicant immediately reenlisted in the Army for 3 years on 10 August 1951.  On a date that cannot be determined by the available records, the applicant was transferred to Germany and it appears that his military occupational specialty did not change from heavy infantry weapons leader.  He was assigned to the Heavy Mortar Company, 169th Infantry Regiment, 43rd Infantry Division.

7.  The applicant was honorably discharged on 19 July 1954, prior to the expiration of his term of service.  The DD Form 214 that he was furnished at the time of his discharge shows that he was awarded the Army Occupation Medal w/Germany Clasp, the National Defense Service Medal, the United Nations Service Medal and a second award of the Army Good Conduct Medal.

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 and satisfactorily perform 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DD Form 214 for the period 29 April 1948 through 9 August 1951 shows that he was awarded the Korean Service Medal w/two Battle Stars.  Although he contends that he participated in more than two campaigns while he was in Korea, his DD Form 214 does not substantiate his contention as his record does not show the date that he actually arrived in Korea or the actual date of his departure.  It also does not show the actual dates of his assignment to and transfer from the 2nd Chemical Mortar Battalion.  Therefore, it must be presumed that the two Battle Stars currently reflected on his DD Form 214 appropriately reflects his campaign participation.

2.  A review of the available records does not substantiate the applicant's contention that he is entitled to award of the Combat Infantryman Badge.  The available record does show that the applicant was a heavy infantry weapons leader assigned to the 2nd Chemical Mortar Battalion, which means that he was not assigned or attached as a member of an infantry unit of brigade, regimental, or smaller size as required by regulation to be awarded the Combat Infantryman Badge.  

3.  Although the applicant was assigned to the Heavy Mortar Company, 169th Infantry Regiment, 43rd Infantry Division during his second period of enlistment, while he was in Germany, his records do not show that he ever participated in ground combat as required by regulation.  

4.  In accordance with the applicable regulation an Army enlisted Soldier must have an infantry specialty and satisfactorily perform 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.  The available record does not show that the applicant met the criteria for award of the Combat Infantryman Badge.  Therefore, he is not entitled to award of the Combat Infantryman Badge.

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070015028



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ABCMR Record of Proceedings (cont)                                         AR20070015028



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