IN THE CASE OF:	

		BOARD DATE:	        18 FEBRUARY 2009

		DOCKET NUMBER:  AR20080018542 


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 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) on his DD Form 214 (Report of Separation from the Armed Forces of the United States) be corrected to show the Combat Infantryman Badge.  He also requests that item 28 (Most Significant Duty Assignment) on his DD Form 214 be corrected to show Company G, 35th Infantry Regiment, 25th Infantry Division instead of the unit he served with after returning stateside. 

2.  The applicant states, in effect, that he served in Korea from July 1950 to May 1951 assigned to Company G, 35th Infantry Regiment, 25th Infantry Division.  He contends that this unit is an infantry rifle company; therefore, he earned the Combat Infantryman Badge.  He also states that the most significant duty assignment should be the unit he served with in combat. 

3.  The applicant provides an undated statement from a fellow Soldier who served with him during the time in question; a Morning Report; a copy of his DD Form 214; and a unit roster 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 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 on 24 September 1952.

4.  Item 5 (Qualifications/Specialty 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 Army of Occupation Medal with Japan Clasp, the Korean Service Medal with five bronze service stars, the United Nations Service Medal, and the Bronze Star Medal as authorized awards.  Item 28 (Most Significant Duty Assignment) on his DD Form 214 shows the entry, “Co [Company] K, 86th Inf [Infantry] Regt [Regiment] 10th Inf Div [Division] Fort Riley Kansas.” 

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

6.  In support of his claim, the applicant provided a Permanent Party Enlisted Roster of Company G, 35th Infantry Regiment (as of 31 July 1950) which lists his name and shows his military occupational specialty (MOS) as 4745 (rifleman).  He provided a Morning Report of Company G, 35th Infantry Regiment, dated 
1 September 1950, which lists his name.

7.  The applicant also provided an undated statement from a fellow Soldier who served with him during the time in question.  He attests that he served in the Korean War from 1950 to 1951, that he was assigned to Company G, 35th Infantry Regiment, 25th Infantry Division, and that he met the applicant in November 1950.  He contends that the applicant was an infantryman and a radio man with this unit and that he believes it was an error on the company clerk’s part for failing to enter the Combat Infantryman Badge on the applicant’s 
DD Form 214. 

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.

9.  Special Regulations Number 615-360-1 (Enlisted Personnel), in effect at the time, established the procedures to be followed in the separation of enlisted personnel from active military service and described the proper method of execution and disposition of the various forms, records, and reports required.  The regulation specifically stated the last unit, or similar element, to which assigned for duty rather than the element of which an individual was a part while moving to a separation point would be entered in item 28.  

10.  Special Regulation 135-175-5 (Civilian Components – Separation of Officers), dated 19 December 1949, prescribed the policies and procedures for completing the DA Form 214 for officer personnel.  In pertinent part, it stated the entry representing the duty which required the greatest demonstration of the officer’s training and experience would be entered in item 28.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant's DD Form 214 shows he held an infantry MOS and he was assigned to Company G, 35th Infantry Regiment during his assignment in Korea, there is no evidence of record which shows he was personally present and under hostile fire in Korea.  In the absence of orders for the Combat Infantryman Badge, the statement provided by the applicant is not sufficient as a basis for award of the Combat Infantryman Badge. Regrettably, there is insufficient evidence on which to base award of the Combat Infantryman Badge in this case.  

2.  The evidence of record supports the applicant’s contention that he was assigned to Company G, 35th Infantry Regiment, 25th Infantry Division during his assignment in Korea.  However, since the applicant admits that he served in Korea from July 1950 to May 1951, and records show he was not discharged until September 1952 (i.e., 16 months later), it appears that Company K, 86th Infantry Regiment, 10th Infantry Division, Fort Riley Kansas, was the last unit to which he was assigned for duty.  Although item 28 is titled “Most Significant Duty Assignment,” this item was used for both officers and enlisted personnel, and officers and enlisted personnel had different criteria for determining what information would be entered in this item.  The instructions for officers were to enter the duty which required the greatest demonstration of the officer’s training and experience, i.e., the most significant duty assignment.  The instructions for enlisted were to enter the last unit, or similar element, to which assigned for duty. The correct entry appears to have been entered on the applicant’s DD Form 214. Regrettably, there is no basis for granting the applicant's request to amend item 28 on his DD Form 214.

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)                                         AR20080018542



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ABCMR Record of Proceedings (cont)                                         AR20080018542



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