IN THE CASE OF:	  

		BOARD DATE:	  7 October 2010

		DOCKET NUMBER:  AR20100011375 


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 (Report of Separation from the Armed Forces of the United States) to show his primary military occupational specialty (MOS) as an infantry automatic rifleman and award of the Combat Infantryman Badge. 

2.  The applicant states the omission of the Combat Infantryman Badge was due to an administrative error.

3.  The applicant provides a DD Form 214, a self-authored letter, various Internet printouts pertaining to the Korea War and infantry operations, and a statement of service.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests the applicant be awarded the Combat Infantryman Badge.

2.  Counsel states the applicant held an infantry MOS as an automatic rifleman, but someone in the applicant's administrative office failed to type in the Combat Infantryman Badge.

3.  Counsel did not provide any additional documents.


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 records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant's DD Form 214 shows he was inducted into the Army of the United States in Indianapolis, IN, on 13 December 1950.  This form further shows that at the time of his separation, he held MOS 4745 (Automatic Rifleman) and his most significant duty assignment (i.e., last duty assignment) was 5015th Army Service Unit, Camp Atterbury, IN.

4.  His DD Form 214 further shows that he completed 1 year, 9 months, and 3 days of creditable active military service of which 8 months and 11 days were foreign service.  He was honorably released from active duty on 15 September 1952 and he was transferred to the Enlisted Reserve Corps to complete his remaining Reserve obligation.

5.  Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the Purple Heart and Korean Service Medal with one bronze service star.

6.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) of his DD Form 214 shows two combat wounds:  a shrapnel fragment wound near Taejon, Korea, on 27 August 1951 and a gunshot wound also in Korea on 11 October 1951.

7.  General Orders Number 119, issued by Headquarters, 279th General Hospital, on 16 October 1951 awarded him the Purple Heart for wounds received in action on 9 October 1951 near Hill 905 in Korea while serving with Company L, 38th Infantry Regiment, 2nd Infantry Division.

8.  Section 8 (Wounds Received through Enemy Action) of his DA Form 24 (Service Records) shows two combat injuries:  shrapnel fragment wound to his nose on 27 August 1951 and gunshot wound to his right hand on 10 October 1951.

9.  His records contain several FEC AGO Forms 241 (Casualty Report) which confirm he sustained two injuries as a result of enemy action on 27 August 1951 and on 9 October 1951.

10.  Army Regulation 600-8-22 (Military Awards) provides for the following awards:

	a.  The Purple Heart is awarded for a wound sustained in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.  An oak leaf cluster denotes a second or subsequent award.

	b.  The Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry MOS.  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.  

	c.  The National Defense Service Medal is awarded for honorable active service for any period between 27 June 1950 and 27 July 1954, both dates inclusive; between 1 January 1961 and 14 August 1974, both dates inclusive; between 2 August 1990 and 30 November 1995; and from 11 September 2001 to a date to be determined.

	d.  The Republic of Korea War Service Medal is awarded to members of the U.S. Armed Forces who served in Korea and adjacent waters between 25 June 1950 and 27 July 1953.  The service must have been performed, in part, while on permanent assignment for 30 consecutive days or on temporary duty for 30 consecutive or 60 non-consecutive days within the territorial limits of Korea or the waters immediately adjacent thereto.

	e.  The United Nations Service Medal is awarded to members of the Armed Forces of the United States dispatched to Korea or adjacent areas on behalf of the United Nations during the period between 27 June 1950 and 27 July 1954.  Personnel awarded the Korean Service Medal automatically establish eligibility for the United Nations Service Medal. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show his infantry MOS and award of the Combat Infantryman Badge.

2.  The evidence of record shows the applicant held MOS 4745 (infantry) and was assigned to an infantry unit when he was wounded in action in Korea on 9 October 1951.  Therefore, he is entitled to award of the Combat Infantryman Badge and correction of his records to show this award.

3.  The evidence of record shows the applicant sustained two combat injuries as a result of enemy action in Korea; however, he was awarded only one Purple Heart.  Therefore, he is entitled to a second Purple Heart and correction of his records to show it.

4.  The evidence of record shows the applicant served a qualifying period of service for award of the National Defense Service Medal and Republic of Korea War Service Medal and is therefore entitled to both awards and correction of his records to show them.

5.  The evidence of record shows the applicant was awarded the Korean Service Medal.  Therefore, he is entitled to award of the United Nations Service Medal and correction of his records to show it. 

6.  With respect to the applicant's MOS, his MOS is listed on his DD Form 214 as 4745 which was the MOS assigned to an automatic rifleman.  The regulation in effect at the time required the listing of the MOS, but not the name of the MOS.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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:

* awarding the applicant a second Purple Heart for wounds received in action on 27 August 1951 in Korea
* awarding the applicant the Combat Infantryman Badge
* deleting from his DD Form 214 the Purple Heart
* adding to his DD Form 214 the Purple Heart (2nd Award), Combat Infantryman Badge, National Defense Service Medal, United Nations Service Medal, and Republic of Korea War Service Medal

2.  The Board further determined 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 his MOS.



      ____________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)                                         AR20100011375



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ABCMR Record of Proceedings (cont)                                         AR20100011375



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