IN THE CASE OF:	  

		BOARD DATE:	        18 February 2009

		DOCKET NUMBER:  AR20080017294 


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 award of the Combat Infantryman Badge and the Korean Defense Ribbon (i.e. Korea Defense Service Medal).

2.  The applicant states that while serving on the Demilitarized Zone (DMZ), his squad wandered off into a North Korean minefield resulting in one U.S. Soldier being killed and three others wounded.

3.  The applicant provides a witness statement, dated 28 April 2008, 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 records show he enlisted in the Regular Army for a period of 4 years on 27 September 1977.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  He subsequently executed a 3-year reenlistment on 29 June 1981 and a 7-month extension on 12 December 1983.  He was honorably discharged on 21 January 1985.  The highest rank he attained during his military service was sergeant (SGT)/E-5.

3.  Item 7 (Last Duty Assignment and Major Command) of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was assigned to D Company, 2nd Battalion, 36th Infantry, U.S. Army, Europe.  Additionally, Item 12f (Foreign Service) of his DD Form 214 shows he completed 1 year, 10 months, and 23 days of foreign service.

4.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the DD Form 214 shows he was awarded the Expert Marksmanship Qualification Badge with Grenade and Rifle Bar (M-16), the Good Conduct Medal (2nd Award), the Army Service Ribbon, the Noncommissioned Officer Professional Development Ribbon with Numeral 1, and the Overseas Service Ribbon.

5.  The applicant's DA Form 2-1 (Enlisted Qualification Record) is not available for review with this case.  Furthermore, the applicant's record is void of permanent change of station (PCS) and/or temporary duty (TDY) orders that show he was assigned to or served in Korea.

6.  In a witness statement, dated 28 April 2008, the witness states that on 7 December 1979, he departed his compound at the DMZ with his squad on a patrol that also had members from other platoons.  Their mission was to walk to a guard post at the DMZ overlooking North Korea.  As he and another sergeant stood on top of a bunker awaiting the remainder of the company, he heard two explosions and spotted several North Korean soldiers firing their weapons at the patrol.  He immediately radioed this in to the tactical operations center (TOC); however, he was ordered to stay put.  He later found out that the radio telephone operator (RTO) had strayed into North Korean territory and stepped on a mine that caused the loss of his leg.  As a sergeant first class (SFC) attempted to rescue him, he also stepped on a mine and was killed.  The wounded were eventually medically evacuated and the SFC's body was recovered.  

7.  Army Regulation 600-8-22 (Military Awards) provides for award of the Combat Infantryman Badge (CIB).  This regulation states that there are basically three requirements for award of the CIB.  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.  Commanders were not allowed to make any exceptions to this policy.

9.  Special provisions exist for Soldiers who served in Korea subsequent to 4 January 1969.  Soldiers must have served in the hostile fire area at least 60 days and be authorized hostile fire pay.  The individuals must have been assigned to an infantry unit of company or smaller size and must have been an infantry officer in the grade of captain or lower or in the case of warrant officers and enlisted men must have had an infantry military occupational specialty.  The Soldier must have been engaged with the enemy in the hostile fire area or in active ground combat involving an exchange of small arms fire at least five times. The Soldier must be recommended personally by each commander in the chain of command and approved at the division level.  There are no provisions for retroactive award of the Combat Infantryman Badge for Korean veterans.

10.  Army Regulation 600-8-22 states that the Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea. The area of eligibility encompasses all land area of the Republic of Korea, and the contiguous water out to 12 nautical miles and all air spaces above the land and water area.  The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense.  Service members must have been assigned, attached, or mobilized to units operating in the area of eligibility for
30 consecutive or for 60 nonconsecutive days, or meet the following criteria:

	a.  be engaged in combat during an armed engagement, regardless of the time in the area of eligibility,

	b.  wounded or injured in the line of duty and required medical evacuation from the area of eligibility, or

	c.  participating as a regularly assigned air crewmember flying sorties into, out of, or within the area of eligibility in direct support of military operations.  Each day that one or more sorties are flown in accordance with these criteria will count 
as one day toward the 30 or 60-day requirement, and personnel who serve in operations and exercises conducted in the area of eligibility are considered eligible for the award as long as the basic time criteria is met.  Due to the extensive time period for KDSM eligibility, the nonconsecutive service period for eligibility remains cumulative throughout the entire period. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Combat Infantryman Badge and the Korea Defense Service Medal.

2.  With respect to the Combat Infantryman Badge, the applicant's infantry MOS is not in question.  However, with respect to the special provision for Soldiers who served in Korea subsequent to 4 January 1969 there is no evidence the applicant served in a hostile fire area for at least 60 days and received hostile fire pay.  Additionally, there is no evidence that the applicant was engaged with the enemy in the hostile fire area or in active ground combat involving an exchange of small arms fire at least five times.  Lastly, there is no evidence he was personally recommended for award of the Combat Infantryman Badge by each commander in the chain of command and approved at the division level.  Therefore, there is insufficient evidence to award the applicant the Combat Infantryman Badge.  

3.  With respect to award of the Korea Defense Service Medal, there is no evidence in the applicant's records and the applicant did not provide any evidence that confirms that he served in Korea.  Furthermore, there is no evidence that the applicant served a qualifying period of service for this award.  Therefore, there is insufficient evidence to award the applicant the Korea Defense Service Medal in this case.

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.


															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)                                         AR20080017294



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ABCMR Record of Proceedings (cont)                                         AR20080017294



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