IN THE CASE OF:	

		BOARD DATE:	  21 January 2010


		DOCKET NUMBER:  AR20090014945 


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, in effect, that the Combat Infantryman Badge (CIB) be added to his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states, in effect, he served with the 4th Battalion, 16th Infantry Regiment, 1st Infantry Division, during his deployment in support of Operation Desert Shield/Storm and was awarded the CIB.  He requests the CIB now be added to the list of awards contained in item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214.

3.  The applicant provides a copy of his DD Form 214 in support of his 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 military record shows that he enlisted in the Regular Army and entered active duty on 20 September 1988.  He was trained in, awarded, and served in military occupational specialties (MOSs) 11M (Fighting Vehicle Infantryman) and 11B (Infantryman).  

3.  The applicant's Official Military Personnel File (OMPF) is void of any orders or other documents that indicate the applicant was recommended for or awarded the CIB by proper authority while serving on active duty.  

4.  On 31 March 1992, the applicant was discharged from active duty under the provisions of chapter 14, Army Regulation 635-200.  The DD Form 214 he was issued at that time shows he completed 3 years, 6 months, and 5 days of creditable active service, of which 2 years, 4 months, and 5 days was foreign service.  Item 13 shows he earned the following awards during his tenure on active duty:  Army Achievement Medal (AAM), Army Service Ribbon (ASR), Army Good Conduct Medal (AGCM), Kuwait Liberation Medal (KLM), National Defense Service Medal (NDSM), Overseas Service Ribbon (OSR) with Numeral 1, and the Southwest Asia Service Medal SWASM) with 2 bronze service stars.  Item 18 (Remarks) includes an entry which shows he served in Southwest Asia (SWA) from 15 November 1990 to 20 February 1991.

5.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Chapter 8 of the award regulations contains guidance on award of combat badges.  It states, in pertinent part, that in order to support award of the CIB there must be evidence that the member held and served in an infantry MOS; that he served in a qualifying infantry unit of brigade, regiment, or smaller size; and that he was personally present and participated with his qualifying infantry unit while it was engaged in active ground combat with enemy forces. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the CIB should be added to his DD Form 214 was carefully considered.  However, by regulation, in order to support award of the CIB, there must be evidence not only that the applicant held and service in an infantry MOS in a qualifying infantry unit, but also that he was personally present and participated with his qualifying infantry unit while it was engaged in active ground combat with enemy forces.  

2.  In this case, the evidence of record is void of any orders or other documents that indicate the applicant was ever recommended for or awarded the CIB by proper authority while serving on active duty.  

3.  The applicant fails to provide independent evidence confirming he received the CIB while serving in SWA.  As a result, absent any evidence confirming his presence and participating in active ground combat with a qualifying infantry unit, the regulatory burden of proof 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.

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)                                         AR20090014945



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ABCMR Record of Proceedings (cont)                                         AR20090014945


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