IN THE CASE OF:	

		BOARD DATE:	11 August 2009    

		DOCKET NUMBER:  AR20090004456 


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 (CIB) and issuance of a Certificate of Retirement (DD Form 363A).

2.  The applicant states, in effect, that he served in Kuwait in 1995 and was issued a combat patch because it was a designated combat zone.  He continues that he possessed an infantry military occupational specialty (MOS) and performed infantry duties.  The applicant further states that a CIB should have been awarded for his time spent in a combat zone.  The applicant also states that he was not issued a Certificate of Retirement at the time of his retirement.

3.  The applicant provides no documentary evidence in support of this 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 record shows that he initially enlisted in the Regular Army (RA) on 12 June 1973 for 3 years.  He was honorably released from active duty on 10 June 1977 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Standby) to complete his remaining Reserve obligation.  He again enlisted in the RA on 3 April 1979 and he continued to serve on this status until 31 May 1996 at which time he was honorably released from active by reason of sufficient service for retirement.  During his tenure of service, the applicant held MOS 11B (Infantryman) and MOS 11M (Heavy Anti-Armor Weapons Infantryman).  At the time of his retirement, the applicant held the rank/grade of master sergeant (MSG)/E-8.

3.  Item 5 (Oversea Service), Item 27 (Remarks), and Item 35 (Record of Assignments) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) show he served in the imminent danger area of Kuwait during the period 1 May 1995 through 15 April 1996 while assigned to Headquarters and Headquarters Company, Army Central Command - Kuwait.

4.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) and Item 9 (Awards, Decorations and Campaigns) of the applicant's DA Form 2-1 do not show award of the CIB.

5.  U.S. Army Central Command - Kuwait, Orders 306-07, dated 2 November 1995, show the applicant was released from active duty on 31 May 1996 and placed on the retired list on 1 June 1996 in the retired rank/grade of MSG/E-8.

6.  The applicant's Official Military Personnel File (OMPF) is void of any orders or other documents that indicate he was ever recommended for or awarded the CIB by proper authority while serving on active duty.  The OMPF also contains no evidence that the applicant served in an infantry MOS while assigned to a qualifying infantry unit of brigade, regimental, or smaller size while participating in active ground combat with enemy forces.

7.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Chapter 8 contains guidance on award of combat and special skill badges, and paragraph 8-6 contains guidance on award of the CIB.  It states, in pertinent part, that there are three basic requirements for the CIB.  The member must hold and serve in an infantry MOS; must be assigned to a qualifying infantry unit of brigade, regimental or smaller size; and must have been present and 
participated with his qualifying infantry unit while it was engaged in active ground combat with enemy forces.  It further stipulates that combat service alone is not a sufficient basis to support award of the CIB.

8.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  In pertinent part, it states that a Certificate of Retirement is to be prepared by the transition center and issued to all retiring Regular Army Soldiers, except those on the Temporary Disability Retirement List.

9.  Army Regulation 15-185 (Boards, Commissions, and Committees - Army Board for Correction of Military Records), in pertinent part, that the ABCMR will not consider an application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice.  This regulation also provides that the ABCMR will decide cases on the evidence of record.  It is not an investigative body.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected by awarding the CIB and issuing him a Certificate of Retirement was carefully considered.

2.  A Certificate of Retirement is required to be issued to a Soldier on the occasion of their retirement; therefore, the applicant is entitled to receive a DD Form 363A commemorating the occasion of his retirement on 31 May 1996.

3.  Although the evidence of record shows the applicant possessed an infantry MOS, there is no evidence that he served in an infantry MOS while assigned to a qualifying infantry unit of brigade, regimental, or smaller size and was personally present and participating with the unit while it was engaged in active ground combat with enemy forces.  Additionally, the record contains no evidence that the applicant was ever recommended for or awarded the CIB.  The applicant has provided no documentary evidence to the contrary.  As a result, the regulatory burden of proof necessary to support award of the CIB has not been satisfied in this case.  Therefore, there is no basis upon which to grant this portion of the applicant's requested relief.

4.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement as pertains to award of the CIB.  This action 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 

____X____  ___X_____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that the applicant be issued a DD Form 363A commemorating the occasion of his retirement on 31 May 1996.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the Combat Infantryman Badge.



      ___________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)                                         AR20090004456



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ABCMR Record of Proceedings (cont)                                         AR20090004456



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