IN THE CASE OF:	  

		BOARD DATE:	  22 November 2011

		DOCKET NUMBER:  AR20110010767 


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 (Armed Forces of the United States Report of Transfer or Discharge) to show:

* he was a citizen of the U.S. instead of Mexico
* award of the Combat Infantryman Badge (CIB)

2.  The applicant states:

* the typist who prepared his DD Form 214 initially indicated he was a U.S. Citizen, but then erased the "Yes" entry and replaced it with a "No" entry
* he did not realize the adverse impact of this error on his employment opportunities until a District Attorney's aid brought it to his attention
* for 30 years, his efforts to gain employment with the Department of Homeland Security (DHS) have been unsuccessful
* he has filed discrimination complaints against DHS
* the U.S. Merit Systems Protection Board (USMSPB) is pending a hearing in Washington, DC
* the Officer of Equal Employment Opportunity (OEEO) is pending a hearing at Fort Snelling, MN
* he immigrated to the U.S. in 1963, joined the U.S. Army in October 1970, and became a Naturalized Citizen in 1977.
* the typist also failed to include the CIB on his DD Form 214
* he served, fought against the enemy in an Infantry Division during the Viet Nam conflict from 1971 to 1972 at the age of 18
* he requests the corrections be made prior to the hearings for the USMSPB an OEEO

3.  He provides his:

* DD Form 214
* request for a hearing with USMSPB
* authorization of an extension for the investigation of a discrimination complaint

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 enlisted in the Regular Army on 1 October 1970.  He completed the training requirements and was awarded MOS 11B (Light Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.  He was released from active duty on 5 October 1973 at the expiration of his term of service and he was transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining Reserve obligation.  He completed 3 years of creditable active service with 5 days of time lost during this period.

3.  His record contains the following documents depicting the information shown:

	a.  A DD Form 4 (Enlistment Contract-Armed Forces of the United States), dated 1 October 1970, shows his place of birth and country of citizenship as Mexico.  This form also shows he was assigned a Naturalization Certificate case number.

	b.  A DA Form 2496-1 (Disposition Form), dated 18 December 1970, Subject:
Security Investigation, shows he was listed as an immigrant alien at the time.

	c.  A DA Form 2496 (Disposition Form), dated 10 June 1971, Subject:  Liberalized Naturalization Procedures, informed the applicant's commander that commanders at all levels were required to insure all aliens on active duty were aware of liberalized naturalization procedures contained in Army Regulation 608-3 (Naturalization and Citizenship of Military Personnel and Dependents) and to assist such members in applying for U.S. Citizenship.  This form shows the applicant was identified as an alien by name.  This form also requested the commander inform the applicant and notify the sender of the date when that was accomplished no later than 30 June 1971.

4.  A thorough review of every document contained in his available military personnel record, many of which bear his signature, shows his country of citizenship consistently appears as Mexico.

5.  His DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Viet Nam during the period 17 May 1971 to 20 March 1972.

6.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows that during his tour of duty in the Republic of Viet Nam, he was assigned to Company D, 51st Infantry Regiment, for duty in MOS 11B as a Rifleman from 7 June 1971 to 20 March 1972.

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

8.  The applicant's DD Form 214 contains the following pertinent information

	a.  Item 7 (U.S. Citizen) shows he was not a U.S. citizen at the time of his separation.

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

9.  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.

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



11.  The applicant's record contains a DD Form 398 (Statement of Personal History), dated nearly 2 years following his release from active duty 14 September 1975, which shows he indicated his citizenship status was "Alien" and his native country was Mexico.  He also indicated his intent to become a U.S. citizen on this form.

12.  Army Regulation 600-8-22 (Military Awards) 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.  

13.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DD Form 214 should be corrected to show award of the CIB and to change his citizenship was carefully considered and determined to lack merit.

2.  The evidence of record shows his citizenship reflected on his DD Form 214 is consistent with every document in his available service personnel record throughout his period of service.  He authenticated several of these documents and his DD Form 214 by placing his signature in the appropriate blocks.

3.  By his own admission, he did not become a fully naturalized U.S. citizen until 1977, several years after his separation.

4.  The Army has an interest in maintaining the accuracy of its records for historical purposes.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.

5.  The applicant's contention that he became a naturalized citizen in 1977 is duly noted.  However, this does not change the conditions and circumstances that existed at the time his service records were created.

6.  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.

7.  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.

8.  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 Viet Nam, 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.

9.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for employment or retirement benefits.  Additionally, in order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  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)                                         AR20110010767





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ABCMR Record of Proceedings (cont)                                         AR20110010767



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