IN THE CASE OF:	  

		BOARD DATE:	  7 January 2010

		DOCKET NUMBER:  AR20090012552 


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) for the period ending 12 May 1992 to show award of the Korea Defense Service Medal, the Combat Infantryman Badge, and the Meritorious Service Medal.

2.  The applicant states, in effect, that he served honorably and his DD Form 214 should reflect all of the awards to which he is entitled.

3.  The applicant provides copies of two DD Forms 214 as documentary evidence in support of this 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 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 United States Army Reserve (USAR) Delayed Entry Program (DEP) on 11 August 1978.  He was discharged from the USAR DEP on 17 August 1978 and he enlisted in the Regular Army on 18 August 1978.  He completed basic combat training and advanced individual training (AIT).  Upon completion of AIT he was awarded military occupational specialty 11B (Infantryman).  The applicant continued to serve on active duty until he was honorably discharged and transferred to the USAR Control Group (Reinforcement) on 14 March 1987.  The highest rank he attained during this period of active duty was the rank of sergeant (SGT)/pay grade E-5.

3.  Following a short break in service, the applicant enlisted in the USAR DEP on 16 June 1987.  He was discharged from the USAR DEP on 22 September 1987 and he enlisted in the Regular Army on 23 September 1987.  The applicant continued to serve on active duty until he was honorably discharged and transferred to the USAR Control Group (Reinforcement) on 12 May 1992.  The highest rank he attained during this period of active duty was the rank of SGT.

4.  Item 5 (Oversea Service) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows he served in the Republic of Korea during the periods of 3 December 1978 through 30 November 1980, 19 April 1982 through 13 April 1983, 30 June 1984 through 29 July 1986, and 4 October 1987 through 22 November 1991.

5.  Item 9 (Awards, Decorations, and Campaigns) of the applicant's DA Form 2-1 does not show award of the Korea Defense Service Medal, Combat Infantryman Badge, or Meritorious Service Medal.

6.  Item 35 (Record of Assignments) of the applicant's DA Form 2-1 further corroborates his service in the Republic of Korea.

7.  Item 12f (Foreign Service) of the applicant's DD Form 214 for the period ending 14 March 1987 shows that he served 5 years of foreign service during that period of active duty.

8.  Item 12f of the applicant's DD Form 214 for the period ending 12 May 1992 shows that he served 4 years, 1 month, and 19 days of foreign service during that period of active duty.

9.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized (All periods of service)) of the applicant's DD Form 214 for the period ending 12 May 1992 shows he was awarded or authorized to wear the Army Achievement Medal with First Oak Leaf Cluster, the Army Service Ribbon, the National Defense Service Medal, the Overseas Service Ribbon 
(4th Award), the Noncommissioned Officer Professional Development Ribbon with Numeral 2, and the Army Good Conduct Medal (3rd Award).  An annotation indicates that Item 13 is continued in Item 18 (Remarks).  Item 18 shows the applicant was also awarded or authorized to wear the Army Commendation Medal and the Meritorious Service Medal.  This form does not show award of the Korea Defense Service Medal or the Combat Infantryman Badge.

10.  The applicant's record is devoid of, and he has failed to provide, any orders or other documents that indicate he was ever recommended for or awarded the Combat Infantryman Badge by proper authority while serving on active duty.  His record also contains no evidence that he 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.

11.  The applicant's record contains a DA Form 638-1 (Recommendation for Award (For Other Than Valor) of Army Achievement Medal, Army Commendation Medal, and Meritorious Service Medal), initiated on 7 October 1991, which shows he was awarded the Army Commendation Medal with First Oak Leaf Cluster for achievement during the period 10 January 1991 to 22 November 1991 by Headquarters, 2d Infantry Division, Permanent Order Number 158-4, dated 29 October 1991.  This award is not shown on the applicant's DD Form 214 for the period ending 12 May 1992.

12.  Army Regulation 600-8-22 (Military Awards) shows the Korea Defense Service Medal was authorized by section 543 of the National Defense Authorization Act of 2003.  This regulation provides that the Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea.  The area of eligibility encompasses all land area of the Republic of Korea, the contiguous water out to 12 nautical miles, and all air spaces above the land and water area.  The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense. 

13.  Army Regulation 600-8-22 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 or special forces specialty, satisfactorily performed duty while assigned or attached as a member of an infantry, ranger or special forces unit of brigade, regimental, or smaller size during any period such unit was engaged in active ground combat.  Eligibility for special forces personnel (less the special forces medical sergeant) accrues from 20 December 1989.  Retroactive awards for Special Forces personnel are not authorized.  A recipient must be personally present and under hostile fire while serving in an assigned infantry or Special Forces primary duty, in a unit actively engaged in ground combat with the enemy.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his records should be corrected to show award of the Korea Defense Service Medal, the Combat Infantryman Badge, and the Meritorious Service Medal were carefully considered and determined to have partial merit.

2.  The evidence shows the applicant served on active duty in the Republic of Korea during a designated period of time to qualify for award of the Korea Defense Service Medal.  Therefore, he is entitled to award of the Korea Defense Service Medal and to have his records corrected to show this award.

3.  Item 18 of the applicant's DD Form 214 for the period ending 12 May 1992 already shows award of the Meritorious Service Medal.  Therefore, there is no need to correct his record to show this award.

4.  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 that he was personally present and participated while the unit 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 Combat Infantryman Badge.  The applicant has provided no documentary evidence to the contrary.  As a result, the regulatory burden of proof necessary to support award of the Combat Infantryman Badge has not been satisfied in this case.  Therefore, there is no basis upon which to grant this portion of the applicant's requested relief.

5.  Permanent orders show the applicant was awarded the Army Commendation Medal with First Oak Leaf Cluster.  Therefore, he is entitled to correction of his records to show this award.






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 all Department of the Army records of the individual concerned be corrected by:

	a.  adding the Korea Defense Service Medal and the Army Commendation Medal with First Oak Leaf Cluster to his DD Form 214 for the period ending 12 May 1992; and

	b.  providing him a correction document as a result of these changes.

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)                                         AR20090012552





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ABCMR Record of Proceedings (cont)                                         AR20090012552



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