IN THE CASE OF:	  

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090013717 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's DD Form 214 to show award of the Combat Infantryman Badge (CIB), Korea Defense Service Medal (KDSM), Imjin Scout patch, and his service in the U.S. Army, Pacific (USARPAC), Republic of Korea (ROK).

2.  Counsel states the applicant served as an infantryman along the Demilitarized Zone (DMZ) with Company A, 1st Battalion, 38th Infantry, 2nd Infantry Division, in the ROK during the period 13 March 1968 to 8 April 1969.

   a.  He states the applicant participated in numerous incidents between U.S. Army and North Korean forces during that period, as documented by the declassified After Action Reports (AARs) he provides, which entitles the applicant to award of the CIB.

	b.  He states the applicant served a qualifying period of service in the ROK for award of the KDSM.

   c.  He states the applicant served on the DMZ, he received hostile file pay, and was authorized to wear the Imjin Scout patch.

3.  Counsel provides, in support of the applicant's request, 14 pages of AAR extracts and information on the Imjin Scout patch.

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, through counsel, requested correction of his records to show award of the CIB.  There is no evidence that the applicant applied to the Military Awards Branch, U.S. Army Human Resources Command (USAHRC), Alexandria, VA, for a determination on his request for the CIB.

	a.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.  Paragraph 8-6 provides, in pertinent part, that there are basically three requirements for award of the CIB.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned or attached to an infantry unit of brigade, regimental or smaller size during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat with his infantry unit.
   
   b.  This paragraph also shows that the special requirements for award of the CIB for service in the ROK were rescinded.  Army veterans and service members who served in Korea on or after 28 July 1953 and meet the criteria for award of the CIB based on service in Korea on the DMZ may submit an application (to include supporting documentation) for award of the CIB to the Commander, USAHRC, ATTN:  AHRC–PDO–PA, 200 Stovall Street, Alexandria, Virginia  22332–0471.

	c.  Therefore, this portion of the applicant's request will not be discussed further in these Proceedings.


3.  The applicant enlisted in the Regular Army (RA) for a period of 3 years on
27 September 1967.  Upon completion of training, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

4.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

	a.  item 29 (Qualification In Arms) he qualified Expert with the M-14 Rifle on
9 January 1968;

	b.  item 31 (Foreign Service) that he served in USARPAC (ROK) from
13 March 1968 through 8 April 1969 and in the U.S. Army, Europe (USAREUR) in Germany from 22 January 1970 through 12 September 1970;

   c  item 38 (Record of Assignments), in pertinent part, that he served in duty MOS 11B while assigned to Company A, 1st Battalion, 38th Infantry, 2nd Infantry Division (ROK) from 17 March 1968 through 7 March 1969; and

   d.  item 41 (Awards and Decorations) his awards as the National Defense Service Medal, Armed Forces Expeditionary Medal (AFEM), and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14).

5.  The applicant's DD Form 214 shows he was honorably released from active duty on 15 September 1970 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  At the time he had completed 2 years, 11 months, and 19 days of net active service.  It also shows in:
   
   a.  item 22 (Statement of Service), c (Foreign and/or Sea Service), the entry "USAREUR" and that he completed 1 year, 8 months, and 17 days of foreign service; and

   b.  item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) the National Defense Service Medal and Expert Marksmanship Qualification Badge with (M-14) Rifle Bar.

6.  The applicant's military personnel records do not contain any orders or other evidence showing award of the CIB.

7.  In support of his application, the applicant provides copies of the following documents:

   a.  fourteen pages of AAR extracts pertaining to the 2nd Infantry Division (ROK) spanning the period from 5 June 1968 to 15 March 1969 that show several incidents where the 1st Battalion, 38th Infantry, engaged the North Korean forces on the DMZ; and

	b.  information on the Imjin Scout patch from the website www.imjinscout.com that provides the story of the Imjin Scout.  This document states, in pertinent part, "the Assistant Division Commander for Operations of the 2nd Infantry Division in 1965….personally conceived the title and directed the development of the Imjin Scouts patch and a program to govern its award."

8.  Army Regulation 600-8-22 further provides that:

   c.  The AFEM is authorized for participants in military operations within a specific geographic area during a specified time period.  An individual who was not engaged in actual combat or equally hazardous activity must have been a bona fide member of a unit participating in, or be engaged in the direct support of, the operation for 
30 consecutive or 60 nonconsecutive days, provided this support involved entering the area of operations.

	d.  Table 2-2 (Armed Forces Expeditionary Medal - Designated U.S. Military Operations) provides that the AFEM is authorized for U.S. military operations in Korea from 1 October 1966 to 30 June 1974.

   e.  Paragraph 2-20 provides for award of the KDSM.  The specific award criteria provides that service members of the armed forces must have served in support of the defense of the ROK from 28 July 1954 through a future date to be determined by the Secretary of Defense; the area of eligibility encompasses all land area of the ROK, and the contiguous water out to 12 nautical miles, and all air spaces above the land and water areas; and service members must have been mobilized with units or assigned or attached to units operating in the area of eligibility, and have been physically deployed in the area of eligibility for
30 consecutive or 60 non-consecutive days.

	f.  Chapter 8 (Badges and Tabs, U.S Origin) and Table 8-1 (U.S. Army Badges and Tabs) lists U.S. Army badges and tabs, and the authorized award authorities.  This document does not list the Imjin Scout patch as a U.S. Army badge or tab authorized for permanent award and wear.

9.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.  

   a.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance 
on the preparation of the DD Form 214.  It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders.

   b.  Paragraph 47 (item 22) provides detailed instructions for computing creditable service for basic pay.  For item 22c (enlisted personnel), enter the total active duty outside the continental limits of the United States during the period covered by the DD Form 214 and the last overseas theater in which service was performed (e.g., "Foreign and/or Sea Service (USAREUR)").

	c.  Paragraph 53 (item 24) states, in pertinent part, list all decorations, service medals, campaign medals, and badges awarded or authorized, omitting authorities cited therein.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel contend that the applicant's DD Form 214 should be corrected to show award of the KDSM and the Imjin Scout patch, and that he served in USARPAC (ROK).

2.  Records show the applicant served in USARPAC (ROK) from 13 March 1968 through 8 April 1969; however, he subsequently served in USAREUR (Germany) from 22 January through 12 September 1970.  Regulatory guidance states that the last overseas theater in which service was performed and the total active service performed outside the continental limits of the United States will be recorded in item 22c of the DD Form 214.  Records show that the applicant's DD Form 214 correctly shows his foreign service.  Therefore, the applicant is not entitled to correction of his DD Form 214 in this instance.

3.  The Military Awards regulation does not show the Imjin Scout patch as an authorized U.S. tab or badge or patch for permanent award.  The evidence of record shows that the Imjin Scout patch is a local patch authorized and issued by the 2nd Infantry Division.  Therefore, the applicant is not entitled to correction of his DD Form 214 in this instance.

4.  Records show the applicant served a qualifying period of service in the ROK for award of the AFEM and that this service medal is recorded in item 41 of his DA Form 20.  Therefore, it would be appropriate to correct his DD Form 214 to show this service medal.

5.  Records show the applicant served a qualifying period of service in the ROK for award of the KDSM.  Therefore, it would be appropriate to correct his DD Form 214 to show this service medal.

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 adding to item 24 of his DD Form 214 the Armed Forces Expeditionary Medal and the Korea Defense Service Medal.

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 showing his USARPAC service in the ROK and the Imjin Scout patch on his DD Form 214.



      __________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)