IN THE CASE OF:
BOARD DATE: 16 June 2009
DOCKET NUMBER: AR20090001780
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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show award of the Combat Infantryman Badge.
2. The applicant states that he believes he earned this badge for his active service from 4 February 2004 to 14 June 2004.
3. The applicant provides a copy of his DD Form 214, dated 8 July 2004, in support of his application.
COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:
1. Counsel requests correction of the applicants DD Form 214 to show award of the Combat Infantryman Badge.
2. Counsel states that the issue raised by the applicant amply advances his contention and substantially reflects the probably facts needed for an equitable review.
3. Counsel did not provide any additional documentary evidence in support of the applicants 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 applicants 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 applicants 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 New York Army National Guard (NYARNG) on 19 July 1989. He subsequently entered active duty for training (ADT) on 13 August 1989, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 11B (Infantryman). He was honorably released from ADT to the control of his ARNG unit on 17 November 1989. He was assigned to the 1st Battalion, 108th Infantry, Rome, NY.
3. The applicant's records show was separated from the ARNG and transferred to the U.S. Army Reserve Control Group (Reinforcement) on 18 July 1992 for completion of his military service obligation.
4. The applicants records show he enlisted in the NYARNG on 12 August 1997. He was assigned to Company D, 2nd Battalion, 108th Infantry, Rome, NY. He executed a 3-year extension on 11 July 2001.
5. On 1 October 2003, the applicant was ordered to active duty in support of Operations Enduring/Iraqi Freedom and subsequently served in Kuwait/Iraq from 4 February 2004 to 14 June 2004. He was honorably released from active duty to the control of his ARNG unit on 8 July 2004.
6. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the National Defense Service Medal, the Global War on Terrorism Expeditionary and Service Medals, the Armed Forces Reserve Medal with M device, and the Army Service Ribbon. Item 13 does not show award of the Combat Infantryman Badge.
7. Headquarters, 1st Infantry Division, Forward Operating Base Danger, Tikrit, Iraq, Permanent Order Number 203-01, dated 21 July 2001, awarded the applicant the Combat Infantryman Badge for participating in combat operations under enemy hostile fire from 6 April 2004 to 11 April 2004.
DISCUSSION AND CONCLUSIONS:
Permanent orders awarded the applicant the Combat Infantryman Badge for participating in combat operations under enemy hostile fire from 6 April 2004 to 11 April 2004 which is not shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show this badge.
BOARD VOTE:
____X____ _____X X
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the Combat Infantryman Badge to his DD Form 214, dated 8 July 2004.
_______ _ __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) AR20090000774
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ABCMR Record of Proceedings (cont) AR20090001780
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