IN THE CASE OF:	    

		BOARD DATE:	         9 December 2008

		DOCKET NUMBER:  AR20080014750 


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 was presented the CIB in Korea prior to formal approval of the award.  He claims the paperwork was submitted but he never received orders.  He believed there would be CIB orders in his record, but when he requested a replacement CIB, there was no record of the award.  He indicates that he should not be penalized because the CIB paperwork was lost.  

3.  The applicant provides a self-authored statement and his separation document (DD Form 214) 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 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 his records were lost or destroyed in that fire.  However, there were sufficient documents on file for the Board to conduct a fair and impartial review of this case.  This case is being considered using primarily the applicant's DD Form 214. 

3.  The applicant’s DD Form 214 shows he was inducted into the Army of the United States and entered active duty on 11 December 1952.  Item 5 (Specialty Number or Symbol) contains the entry "NA."  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he earned the following awards during his active duty tenure: United Nations Service Medal (UNSM); National Defense Service Medal (NDSM); and Korean Service Medal (KSM) with 1 bronze service star.  The CIB is not included in the list of awards contained in Item 27.  Item 28 (Most Significant Duty Assignment) shows that while serving in Korea, he was assigned to "E" Company, 27th Infantry Regiment.  On 12 October 1954, the applicant was honorably released from active duty (REFRAD), in the rank of corporal (CPL), after completing 1 year, 10 months, and 2 days of active military service.  

4.  Army Regulation 600-8-22 (Military Awards) contains the Army’s awards policy.  Chapter 8 provides guidance on award of combat skill badges and states, in pertinent part, that there are three basic requirements for the CIB.  A member 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.  It further specifies that campaign or battle credit alone is not sufficient for award of the CIB.  A recipient must be personally present and under hostile fire while assigned infantry duty in a qualifying infantry unit of brigade, regimental or smaller size, while the unit is actively engaged in ground combat with the enemy. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the CIB was carefully considered.  However, by regulation, in order to support award of the CIB there must be evidence confirming the member held and served in an infantry MOS, that he served in a qualifying infantry unit of brigade, regimental or smaller size, and that he was present and personally participated with his qualifying infantry unit while it was engaged in active ground combat with hostile forces.  Service in a combat zone alone does not qualify a member for the CIB.  


2.  Although the record in this case confirms that the applicant was serving in a qualifying infantry unit, there is no evidence of record confirming the applicant held an infantry MOS, or of his personal participation in active ground combat during the time he served in the ROK.  The CIB is not included in the list of authorized awards contained on the applicant's DD Form 214, which carries with it a presumption of regularity.  The information contained on the separation document was correct at the time it was prepared and issued.  The burden of proving otherwise rests with the applicant.  

3.  Absent any evidence confirming the applicant was awarded the CIB by proper authority while serving on active duty, or that he met the three basic requirements necessary to support award of the CIB, the regulatory burden of proof necessary to support award of the CIB has not been satisfied in this case.

4.  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 related to award of the CIB. 

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)                                         AR20080014750



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ABCMR Record of Proceedings (cont)                                         AR20080014750


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