IN THE CASE OF:	

		BOARD DATE:	  27 January 2009

		DOCKET NUMBER:  AR20080018241 


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, that while serving in the Republic of Korea (ROK) he served in a combat zone and as a result believes he is eligible for the CIB.

3.  The applicant provides a Department of Veterans Affairs (VA) letter, dated 12 August 2008, and his separation document (DD Form 214, Report of Separation from the Armed Forces of the United States) 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 (AUS) and entered active duty on 13 January 1953.  Item 5 (Specialty Number or Symbol) contains the entry 1745 (Infantryman).

4.  Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows that during his active duty tenure, he earned the United Nations Service Medal (UNSM), Korean Service Medal (KSM) with 1 bronze service star, and National Defense Service Medal (NDSM).  The CIB is not included in the list of awards contained in item 27.  Item 28 (Most Significant Duty Assignment) contains the entry Light Weapons Infantryman and confirms he was assigned to Company C, 160th Infantry Regiment, while serving in Korea.

5.  On 12 January 1955, the applicant was honorably separated in the rank of sergeant after completing 2 years of active military service.

6.  Army Regulation 600-8-22 (Military Awards) contains the Army’s awards policy.  Chapter 8 of the awards regulation provides guidance on the CIB.  It 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. 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.  Paragraph 8-6c contains a list of all qualifying wars, conflicts, and operations for which the CIB is authorized and identifies the periods of eligibility for each.  The list includes the Korean War and identifies the qualifying period as 27 June 1950 through 27 July 1953.

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 not only that the member held an infantry MOS and served in a qualifying infantry unit, but also that he was personally present with the unit at a time when it engaged enemy forces in active ground combat, and that he actively participated in such ground combat.  Further, by regulation, the qualifying period of eligibility for the CIB during the Korean War expired on 27 July 1953.

2.  The evidence in this case shows the applicant held and served in an infantry MOS in a qualifying infantry unit in Korea.  However, it fails to confirm his presence with and participation with his qualifying infantry unit while it was actively engaged in ground combat with enemy forces in Korea.  Further, the evidence does not identify the specific dates of the applicant's service in Korea, and given he did not enter service until 13 January 1953, it is likely that, if not all, the majority of his service in Korea was completed after the expiration of the CIB eligibility period for the Korean War which was 27 July 1953.  As a result, the regulatory burden of proof necessary to support award of the CIB has not been satisfied in this case.

3.  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.

4.  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)                                         AR20080018241



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ABCMR Record of Proceedings (cont)                                         AR20080018241



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