IN THE CASE OF:	  

		BOARD DATE:	  18 September 2008

		DOCKET NUMBER:  AR20080008774 


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, in effect, award of the Combat Infantryman Badge (CIB).   

2.  The applicant states, in effect, he served in Operation Desert Storm from 
19 January to 8 May 1991.  He claims he held an infantry military occupational specialty (MOS) and performed duties that included clearing enemy bunkers.  He further states that he was involved in combat with the Iraqi Republican Guard.  

3.  The applicant provides an Army Commendation Medal (ARCOM) Certificate in support of his application.  

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 record shows that he enlisted in the Regular Army and entered active duty on 17 September 1987, and was trained in and awarded MOS 11M (Fighting Vehicle Infantryman).  

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows he served in Southwest Asia (SWA) from 7 January through 9 May 1991.  The CIB is not included in the list of awards contained in Item 9 (Awards, Decorations & Campaigns), and Item 33 (Date Reviewed) shows the applicant last reviewed this record on 4 September 1991.  

4.  The applicant's Official Military Personnel File (OMPF) is void of any orders or other documents that indicate he was ever recommended for or awarded the CIB by proper authority while serving on active duty.

5.  On 18 September 1991, the applicant was honorably released from active duty (REFRAD).  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the separation document 
(DD Form 214) he was issued at the time shows he earned the following 
awards during his active duty tenure:  Army Service Ribbon (ASR); SWA 
Service Medal with 2 bronze service stars; Army Achievement Medal (AAM) 
2nd Oak Leaf Cluster (3rd Award); National Defense Service Medal (NDSM); Army Commendation Medal (ARCOM) 1st Oak Leaf Cluster (2nd Award); 
Army Good Conduct Medal (AGCM); Overseas Service Ribbon (OSR); Marksman Marksmanship Qualification Badge with Rifle Bar (M-16); and Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  

6.  The applicant provides an ARCOM Certificate that confirms he was awarded the ARCOM for meritorious achievement during the period 17 January through 28 February 1991, while assigned to D Company, 1st Battalion, 41st Infantry Regiment.  The award certificate indicates that during Operation Desert Storm, the applicant was assigned duties clearing enemy bunkers, capturing enemy prisoners of war, and destroying selected enemy equipment.  The certificate gives no indication that the applicant was present with his unit while it was engaged in active ground combat with enemy forces.  

7.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 8-6 contains guidance on award of the CIB.  It states, in pertinent part, that in order to support award of the CIB, there must be evidence that the member held and served in an infantry MOS, that he was assigned to an infantry unit of brigade, regimental, or smaller size, and that he was present and participated with his unit while it was engaged in active ground combat with enemy forces.  Combat service alone does not qualify a member for award of the CIB.  
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the CIB based on his combat service in SWA was carefully considered.  However, there is insufficient evidence to support his claim.  

2.  The evidence of record confirms that the applicant held and served in an infantry MOS in a qualifying infantry unit while serving in SWA in support of Operation Desert Storm.  However, there is no evidence confirming his presence and personal participating with his unit while it was engaged in active ground combat with enemy forces.  

3.  The CIB is not included in the list of awards contained in Item 9 of the applicant's DA Form 2-1, which he last reviewed during his separation processing in September 1991, subsequent to the period of his SWA service.  In effect, this review was his verification that the information contained on the record, to include the list of awards in Item 9, was correct at that time.  Further, the CIB is not included in the list of awards contained in Item 13 of his DD Form 214, which he authenticated with his signature on the date of his REFRAD.  In effect, his signature was his verification that the information contained on the separation document, to include the list of awards contained in Item 13, was correct at the time the DD Form 214 was prepared and issued.  Finally, there are no orders or other documents on file in his OMPF that show he was ever recommended for or awarded the CIB by proper authority while serving on active duty.  

4.  Although the ARCOM certificate provided by the applicant outlines the duties he performed in SWA, it fails to confirm his personal presence and participation in active ground combat with his qualifying infantry unit.  The ARCOM certificate confirms his combat service in SWA was not overlooked by his chain of command.  As a result, absent any evidence of his personal presence and participation in active ground combat with enemy forces, the regulatory burden of proof necessary to support award of the CIB has not been satisfied in this case. 

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.  The applicant and all others concerned should know that this action related to award of the CIB in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ___x ____  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.



      ________x______________
               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)                                         AR20080008774



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ABCMR Record of Proceedings (cont)                                         AR20080008774



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