IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100001250 


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) based upon the facts that his military occupational specialty (MOS) was 11B (Light Weapon Infantryman) and he received Combat Pay [properly referred to as Hostile Fire Pay] for wartime service in the Republic of Korea.

2.  He states, in effect, he should be awarded the CIB based on the fact his unit was engaged in combat with North Korean forces and Soldiers were killed and wounded in action.  He further states they were paid Hostile Fire Pay for this duty.  He states he was unaware of this oversight until he filed a claim for benefits from the Department of the Veterans Affairs.

3.  The applicant provides:

* a DD Form 122 (Certificate for Performance of Hazardous Duty)
* a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 was inducted into the Army of the United States on 29 February 1968.  He completed the training requirements and was awarded MOS 11B.  The highest rank/grade he attained while serving on active duty was specialist four/E-4.  He was released from active duty on 12 October 1969 at the expiration of his term of service and he was transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining Reserve obligation.  He completed 1 year, 7 months, and 14 days of creditable active service during this period.

3.  His DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Korea during the period 15 September 1968 to 11 October 1969.

4.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows that during his tour of duty in the Republic of Korea, he was initially assigned to Company C, 1st Battalion, 23d Infantry Regiment, 2d Infantry Division, for duty in MOS 11B from 20 September 1968 through 10 October 1969.

5.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not show award of the CIB.

6.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not show award of the CIB.

7.  There is no evidence in the available record which shows the applicant was personally present and participated with a qualifying infantry unit while the unit was engaged in active ground combat with enemy forces.

8.  There is no evidence in the available record which shows the applicant was either recommended for or awarded the CIB.

9.  He provides a DD Form 122, dated 5 October 1969, which shows he was authorized to receive Hostile Fire Pay from October 1968 to 31 October 1969 while serving in the Republic of Korea.

10.  Hostile Fire Pay was authorized for all Soldiers stationed in the vicinity of the demilitarized zone (DMZ) of the Republic of Korea in accordance with Rule Number 1 during the period 2 April 1968 through 1 September 1973.

11.  Army Regulation 600-8-22 also provides that the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry MOS.  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show he was awarded the CIB was carefully considered.

2.  Hostile Fire Pay was authorized for all Soldiers stationed in the vicinity of the DMZ of the Republic of Korea in accordance with Rule Number 1 during the period 2 April 1968 through 1 September 1973.

3.  The applicant's available record is void of any orders or other documents indicating he was recommended for or awarded the CIB by proper authority while serving on active duty.

4.  By regulation, in order to support award of the CIB, there must not only be evidence that a member served in an infantry MOS, while assigned to an infantry unit, but the individual must have been present and participated with the unit while it was engaged in active ground combat with enemy forces.

5.  Although the evidence of record shows the applicant served in an infantry MOS while assigned to an infantry unit during his tour of duty in the Republic of Korea, his record is void of any evidence that shows he was personally present and participated with the unit while it was engaged in active ground combat with enemy forces.  Accordingly, the available evidence does not support award of the CIB.

6.  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 

________  ________  ________  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)                                         AR20100001250





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ABCMR Record of Proceedings (cont)                                         AR20100001250



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