IN THE CASE OF:	  

		BOARD DATE:	  	  24 July 2008

		DOCKET NUMBER:  AR20080006176 


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 item 28 (Most Significant Duty Assignment) on his DD Form 214 (Report of Separation from the Armed Forces of the United States) be corrected to show Company E, 38th Infantry Regiment.  He also requests award of the Combat Infantryman Badge. 

2.  The applicant states, in effect, that he never had a duty assignment to any Army hospital; he was only a patient there.  He contends that he was a rifleman in Company E of the 38th Infantry Regiment in Korea, that he was wounded in action, and that he was a Prisoner of War.   

3.  The applicant provides a copy of his DD Form 214; a letter, dated 28 April 2008, from the Secretary/Past President of the Second Infantry Division Korean War Veterans Alliance; a unit roster of Company E, 38th Infantry Regiment; an excerpt from the 2nd Infantry Division Korean War Casualty List (1950-1953); a roster of the 38th Infantry Regiment – Rock of the Marne; and excerpts from the American Ex-Prisoners of War Membership Directory 1999, the Korean War Ex-Prisoners of War (directory), the Second Infantry Division History Book, and the “World War II, Korea, Vietnam and Today Military” newsletter.

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 remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.  

3.  The applicant enlisted on 26 August 1949.  He served in Korea and was honorably discharged by reason of physical disability on 29 September 1953.

4.  Item 5 (Qualifications/Special Number or Symbol) on the applicant’s DD Form 214 shows the entry, “1745” [rifle platoon or squad leader].  His DD Form 214 shows the Korean Service Medal with one bronze service star and the United Nations Service Medal as authorized awards.  Item 28 on his DD Form 214 shows the entry, “US Army Hospital 8167th AU [Army Unit] APO [Army Post Office] 1055.” 

5.  There are no orders for the Combat Infantryman Badge in the available records.  

6.  In support of his claim, the applicant provided a unit roster of Company E, 38th Infantry Regiment which lists his name and shows his military occupational specialty (MOS) is 4745 (rifleman).  He also provided an excerpt from the 2nd Infantry Division Korean War Casualty List 1950-1953 which shows the applicant was assigned to the 38th Infantry Regiment.

7.  On 22 January 2008, the Army Board for Correction of Military Records amended the applicant’s records to add the Prisoner of War Medal, the Army Good Conduct Medal, the Purple Heart with First Oak Leaf Cluster, the National Defense Service Medal, and the Republic of Korea War Service 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, 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.
 
DISCUSSION AND CONCLUSIONS:

1.  Although the applicant’s DD Form 214 shows his most significant duty assignment was an Army hospital, evidence of record shows he was assigned to Company E, 38th Infantry Regiment during his assignment in Korea.  Based on the foregoing, and since it appears the applicant was only assigned to the Army hospital as a result of his injuries, item 28 on his DD Form 214 should be corrected to show his most significant duty assignment was Company E, 38th Infantry Regiment.

2.  Evidence of record shows the applicant was an infantryman who served in an infantry MOS and was wounded in action while an assigned member of an infantry unit in Korea.  Therefore, there is sufficient evidence on which to base award of the Combat Infantryman Badge in this case.  

BOARD VOTE:

___xx___  ___xx___  ___xx___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

	a.  awarding him the Combat Infantryman Badge; 

	b.  adding the Combat Infantryman Badge to his DD Form 214; 

	c.  deleting the entry in item 28 on his DD Form 214; and 
	
	d.  adding the entry, “Company E, 38th Infantry Division” in item 28 on his DD Form 214.



      ________xxxxx__________
                 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)                                         AR20080006176



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ABCMR Record of Proceedings (cont)                                         AR20080006176



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