IN THE CASE OF:	  

		BOARD DATE:	        22 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090008360 


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 (CIB). 

2.  The applicant states, in effect, that he was awarded the CIB following his deployment to Iraq from March through July 2004; however, this award was omitted from his DD Form 214.  He claims he needs to prove he earned the CIB to prove his entitlement to compensation for his combat service. 

3.  The applicant provides his DD Form 214 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 record shows he enlisted in the Regular Army (RA) and he entered active duty on 19 June 2002.  He was trained in and awarded military occupational specialty (MOS) 11C (Infantry Indirect Fire Infantryman).  

3.  The applicant's Enlisted Record Brief (ERB) shows that during his deployment to Iraq, he was assigned to Headquarters and Headquarters Company (HHC), 1st Battalion, 75th Ranger Regiment, and he was serving in the duty MOS 11C.  It also shows he was advanced to the rank/grade of specialist (SPC)/E-4 on
19 August 2004.  

4.  The applicant's Official Military Personnel File (OMPF) is void of any orders or other documents that indicate he was recommended for or awarded the CIB by proper authority during his active duty tenure.  

5.  On 8 February 2005, the applicant was discharged under the provisions of paragraph 14-12b, Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), by reason of misconduct with a general, under honorable conditions discharge.  At the time, he had completed 
2 years, 7 months, and 20 days of active military service.  The DD Form 214 he was issued at the time shows he served in Iraq from 29 March through 7 July 2004.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) does not show award of the CIB.

6.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Chapter 8 of the awards regulation contains guidance on award of combat and special skill badges.  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; he must be assigned to a qualifying infantry unit of brigade, regimental or smaller size; and he must have been present and participated with his qualifying infantry unit while it was engaged in active ground combat with enemy forces.  The regulation stipulates that combat service and campaign participation alone does not qualify a member for the CIB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show his award of the CIB was carefully considered.  However, by regulation, in order to support award of the CIB, there must not only be evidence that the member held and served in an infantry MOS in a qualifying infantry unit, but also that the member was present and participated with his qualifying infantry unit while it was engaged in active ground combat with enemy forces.   

2.  The applicant's record is void of any indication that he or his unit ever participated in combat missions requiring closure with and engagement with enemy forces.  Further, his record is void of any orders or other documents indicating that he was ever recommended for or awarded the CIB by proper authority while serving on active duty.  

3.  Absent any evidence that the applicant was present and participated with the unit while it was engaged in active ground combat with enemy forces, the regulatory burden of proof necessary to support award of the CIB has not been satisfied in this case.  

4.  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 or that would support amendment of the original Board decision in this case.  

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)                                         AR20090008360



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ABCMR Record of Proceedings (cont)                                         AR20090008360


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