IN THE CASE OF:	  

		BOARD DATE:	  9 February 2012

		DOCKET NUMBER:  AR20110015277 


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, the following corrections to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending on 19 May 1967:

   a.  Item 1 (Last Name - First Name - Middle Name) to show his name change and a new DD Form 214 issued under that name;
   
   b.  Item 24 (Decorations, Medal, Badges, Commendations, and Campaign Ribbons Awarded or Authorized) to list the Combat Infantryman Badge, Presidential Unit Citation, Meritorious Unit Commendation, and Expert Marksmanship Qualification Badge with Rifle Bar (M-14) and issuance of the medals; and
   
   c.  service-connected disability compensation for severe hearing loss and 70 percent of vision loss.

2.  He states, in effect, that the 2nd Battalion, 508th Infantry, was awarded the Presidential Unit Citation and Meritorious Unit Award by President Johnson for having been in combat over 90 days and carrying out their mission with honor during the Dominican Crisis.  Having served in combat well over 90 days and being directly shot earned his unit the Combat Infantryman Badge.



3.  He further states he is 100 percent disabled.  He suffers from severe hearing loss in his right ear.  The destroyed ear nerves have affected his right eye causing 70 percent loss of vision which is permanent and non-adjustable and continues to deteriorate.  In effect, he is being denied the rightful claim for service-connective disabilities for hearing and vision loss as well as post traumatic stress disorder (PTSD).  

4.  He also states that he legally changed his name in July 1976 from Bxxxxxx Wxxxxxx Lxxxxx to Jxxxx Axxx Cxxxxxx.  

5.  He provides:

* Power Pack Campaign Book Dominican Republic 1965-1966
* 1967 DD Form 214
* Superior Court of the State of California orders, dated 26 March 1970, 12 August 1975, and 8 July 1976
* DD Form 214N (Report of Separation from Active Duty) ending on 17 November 1976

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.  With respect to entitlement to service-connected disability compensation for his hearing and vision loss and PTSD, this issue is a function of the Department of Veterans Affairs (VA) and not within the purview of the Board.  The VA is a separate Government agency which acts independent of the Army and he should contact that agency concerning service-connected disability compensation.  Therefore, this matter will not further be discussed in this Record of Proceedings.



3.  The applicant’s military record shows he was inducted into the Army of the United States (AUS) on 20 May 1965, for 2 years.  Item 1 (Last Name, First Name, Middle Name) of his DD Form 47 (Record of Induction) show he was inducted under the name of Bxxxxxx Wxxxxxx Lxxxxx.

4.  He completed training and was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).  He served in the Dominican Republic from 28 October 1965 through 19 September 1966.  He was assigned to Headquarters and Headquarters Company, 2nd Battalion, 508th Infantry Regiment. 

5.  He was honorably released from active duty on 19 May 1967, at the expiration of his term of service, and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).

6.  Item 1 of the DD Form 214 he was issued lists the name he was inducted under.  Item 24 of this form does not list the Combat Infantryman Badge, Presidential Unit Citation, Meritorious Unit Award, and Expert Marksmanship Qualification Badge with Rifle Bar (M-14).   

7.  His DA Form 20 (Enlisted Qualification Record) lists his name as Bxxxxxx W. Lxxxxx.  Item 41 (Awards and Decorations) of this form lists the Expert Marksmanship Qualification Badge with Rifle Bar (M-14); however, the Combat Infantryman Badge, Presidential Unit Citation, and Meritorious Unit Commendation are not listed.

8.  There are no orders in his military personnel records that show he was awarded the Combat Infantryman Badge. 

9.  A review of the Army Human Resources, Awards and Decorations Branch, website, failed to reveal orders authorizing award of the Presidential Unit Citation and Meritorious Unit Commendation to his unit during their service in the Dominican Republic.

10.  Letter Orders Number 04-88354 were issued on 7 April 1971 discharging him from the USAR with an effective date of 3 March 1971.  The orders list the name he was inducted into the AUS and served in the USAR under.

11.  The military documents on file in his official military personnel file show he served in and was released from the AUS in May 1967 under the name shown on his DD Form 214 ending on 19 May 1967.  There is no evidence in his service personnel records to show he legally or administratively changed his name during his period of service in the AUS and USAR.
12.  He provided copies of the following Superior Court of the State of California orders:

* dated 26 March 1970 - changing his name from Bxxxxxx Wxxxxxx Lxxxxx to Jxxxx Dxxxxxx Mxxxxxxxxx
* dated 12 August 1975 - changing his name from Jxxxx Dxxxxxx Mxxxxxxxxx to Bxxxxxx Wxxxxxx Lxxxxx.
* dated 8 July 1976 - changing his name from Bxxxxxx Wxxxxxx Lxxxxx to Jxxxx Axxx Cxxxxxx.

13.  He enlisted the U.S. Navy on 8 September 1976 and was honorably discharged on 17 November 1976.  The DD Form 214N he was issued shows he served under the name of Jxxxx Axxx Cxxxxxx during this period.

14.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for soldiers upon retirement, discharge, or release from active military service or control of the Army.  It stated the DD Form 214 was a synopsis of the Soldier’s most recent period of continuous active duty.  It provided a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.

15.  Army Regulation 600-8-22 (Military Awards) states 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.  

16.  Army Regulation 600-8-22 also states the Presidential Unit Citation (known as the Distinguished Unit Citation until 3 November 1966) is awarded for extraordinary heroism in action.  A unit must display such gallantry, determination and esprit de corps in accomplishing its mission as would warrant award of the Distinguished Service Cross to an individual.   The Presidential Unit Citation is awarded to units of the Armed Forces of the United States for extraordinary heroism in action against the enemy occurring on or after 7 December 1941.  This award will normally be earned by units which have participated in single or successive actions covering relatively brief time spans.  

17.  Army Regulation 600-8-22 further states the Meritorious Unit Commendation is awarded to units for exceptionally meritorious conduct in the performance of outstanding services for at least 6 continuous months during the period of military operations against an armed enemy occurring on or after 1 January 1944.  Units based in the continental United States are excluded from this award, as are other units outside the area of operations.  
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-14).  This award is not shown on his DD Form 214 ending on 19 May 1967.  Therefore, he is entitled to correction to this DD Form 214 to show this badge.

2.  The evidence of record also shows he served in the AUS on active duty from 20 May 1965 through 19 May 1967 under the name of Bxxxxxx Wxxxxxx Lxxxxx. He was transferred to the USAR and served there under the name of Bxxxxxx Wxxxxxx Lxxxxx.  Therefore, his Army military records and DD Form 214 ending on 19 May 1967 are correct as currently constituted and, as a result, there is no basis for granting him the requested relief.

3.  For historical purposes, the Army has an interest in maintaining the consistency of its records.  The data contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  While his desire to have his 1967 DD Form 214 corrected to show the 1976 name change is understood, it is not a basis for compromising the integrity of the Army's records.  A copy of this decisional document will be filed in his official military personnel file for reference purposes.

4.  To be entitled to award of the Combat Infantryman Badge, the evidence must show that an individual held and served in an infantry MOS while assigned or attached to an infantry unit of brigade, regimental, or smaller size, and must have actively participated in active ground combat while assigned or attached to this infantry unit.

5.  The evidence of record shows he held and served in MOS 63B during his period of service.  There is no evidence of record and he did not provide any evidence that confirms he held in an infantry MOS and actively participated in active ground combat during this period of service.

6.  The Combat Infantryman Badge is not automatically awarded to a Soldier for being shot at or for undergoing the hazards of day-to-day combat.  Therefore, lacking sufficient evidence as required by the governing regulation there is an insufficient evidentiary basis for awarding him the Combat Infantryman Badge or adding it to his 1967 DD Form 214.

7.  His contention that his unit was issued the Presidential Unit Citation and Meritorious Unit Commendation alone is insufficient for correction to his DD Form 214 to show these awards.  The evidence of record does not show his unit was 
awarded either award during his period of service in the Dominican Republic.  Therefore, he is not entitled to award of the Presidential Unit Citation Meritorious Unit Commendation and to have these unit awards added to his 1967 DD Form 214.

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 on the applicant's DD Form 214 ending on 19 May 1967 the Expert Marksmanship Qualification Badge with Rifle Bar (M-14). 

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 the following:

* Correcting Item 1 on his DD Form 214 ending 19 May 1967 to show his 1976 name change and issuing him a new DD Form 214
* Awarding him the Combat Infantryman Badge, Presidential Unit Citation and Meritorious Unit Commendation, adding them to his 1967 DD form 214, and issuing him the medals



      _______ _   _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)                                         AR20110015277





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ABCMR Record of Proceedings (cont)                                         AR20110015277



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