IN THE CASE OF:	  

		BOARD DATE:	  9 July 2009

		DOCKET NUMBER:  AR20090003768 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show “combat service” in Korea and award of the Combat Infantryman Badge (CIB).

2.  The applicant states he served on the Demilitarized Zone (DMZ) in Korea from 20 November 1978 to 16 November 1979 as an infantryman with Company A, 1st Battalion, 38th Infantry, 2nd Infantry Division.  He recently discovered he was eligible for award of the CIB.

3.  The applicant provides:

	a.  a copy of his DD Form 214; and

	b.  internet printouts concerning the CIB for post-Korean War service in Korea, the Navy/Marine Corps Combat Action Ribbon, and the Republic of Korea Presidential Unit Citation (ROKPUC) for the 7th Infantry Division.

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 enlisted in the Regular Army for 3 years on 18 July 1978.  Following Basic Combat Training at Fort Leonard Wood, MO and Infantry Advanced Individual Training at Fort Benning, GA, he was awarded military occupational specialty (MOS) 11B (Infantryman) and was assigned to Korea.

3.  The applicant served in Korea as a member of Company A, 1st Battalion, 38th Infantry, 2nd Infantry Division from 17 November 1978 to 16 November 1979.

4.  Following his tour of duty in Korea, the applicant was returned to the United States and assigned to Company B, 3rd Battalion, 32nd Infantry, Fort Ord, CA.  On 1 May 1980, he was discharged under other than honorable conditions under the provisions of chapter 10, Army Regulation 635-200 by reason of conduct triable by court-martial.

5.  The applicant’s DD Form 214 shows he served 1 year, 8 months, and 8 days of creditable service and that he had 35 days of lost time due to AWOL.  It also shows, in Item 12f (Foreign Service), that he had 1 year of foreign service.  The location of that service is not further specified.

6.  Army Regulation 600-8-22 (Military Awards) sets forth Department of the Army criteria, policy and instructions concerning individual military awards, the Good Conduct Medal, service medals and service ribbons, combat and special skill badges and tabs, unit decorations, and trophies and similar devices awarded in recognition of accomplishments.  It provides the following general criteria for award of the CIB:  be an infantryman satisfactorily performing infantry duties; be assigned to an infantry unit during such time as the unit is engaged in active ground combat; and be an active participant in such ground combat.  Army veterans and service members who served in Korea on the DMZ between 4 January 1969 to 31 March 1994 and meet the general criteria for award of the 


CIB, may submit an application (to include supporting documentation) for award of the CIB to USA HRC, ATTN: AHRC-PDO-PA, 200 Stovall Street, Alexandria, VA 22332-0471.  The applicant has been advised by letter of this requirement.

7.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  The regulation in effect at the time of the applicant’s discharge stated only that the total amount of foreign service would be entered in Item 12f; it did not provide for the entering of a location of such foreign service.  Likewise, the regulation made no provisions for listing locations of foreign service in Item 18 (Remarks).

DISCUSSION AND CONCLUSIONS:

1.  Regarding the CIB, the applicant has been advised to submit his request for that award to Commander, US Army Human Resources Command, Alexandria, VA.  Should that office deny his request, he may resubmit to this Board, providing proof of denial.

2.  The applicant wants his Korea “combat service” shown on his DD Form 214.  In 1980, there were no requirements to show where foreign service was performed, only the total number of years, months, and days.  The applicant’s DD Form 214 is correct.

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.

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)                                         AR20090003768





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ABCMR Record of Proceedings (cont)                                         AR20090003768



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