IN THE CASE OF:	  

		BOARD DATE:  12 June 2012

		DOCKET NUMBER:  AR20110023054 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, to add the Combat Infantryman Badge (CIB) to the applicant's WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge) and the Bronze Star Medal (BSM).  He also requests to list his organization as Company K, 366th Infantry Regiment.   

2.  Counsel states the applicant was awarded the CIB on 2 February 1945 by General Orders Number 10.  The applicant was not aware of the award, just that his discharge designation as a truck driver with an engineering unit was after the war was over.  

3.  Counsel adds that the applicant served honorably during World War II (WWII) and he carried out his orders to the best of his ability.  It is not fair to stigmatize his honorable combat service by indicating a unit on his separation document, which was not in combat at all. 

4.  Counsel provides:

* general orders 
* a WD AGO Form 53-55
* various other orders
* declassified unit operation orders (OPORD) and fragmentary orders (FRAGO) for the 366th Infantry Regiment
* printouts on the history of the BSM and CIB
* an excerpt from a book

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 complete 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 the applicant's 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 WD AGO Form 53-55 shows he was inducted into the Army of the United States on 16 July 1941.  He served in the European-African-Middle Eastern (EAME) Theater of Operations from 6 April 1944 until 28 October 1945 and was honorably discharged on 28 November 1945.  This form also shows the following entries:

* Item 6 (Organization) – 226th Engineer (General Support)
* Item 30 (Military Occupational Specialty and Number) – 345 (Truck Driver Light)
* Item 31 (Military Qualifications and Date) – does not include the CIB
* Item 32 (Battles and Campaigns) – North Apennines and Po Valley
* Item 33 (Decorations and Citations) shows the following:

* American Service Medal (determined to be American Campaign Medal)
* EAME Campaign Medal
* Army Good Conduct Medal (1st Award)
* WWII Victory Medal
* American Defense Service Medal 

4.  The applicant's counsel provided Headquarters, 366th Infantry Regiment, General Orders Number 10, dated 2 February 1945, which award him the CIB.  These orders are not in his available record.

5.  Counsel provided copies of various declassified OPORDs and FRAGOs which chronicle the 366th Infantry Regiment's daily combat mission in Italy from December 1944 through May 1945.

6.  The internet states the 366th Infantry Regiment was an all African American (segregated) unit of the U.S. Army that served with distinction in both World War I and World War II.  The unit was unique because it was one of the few Negro (Buffalo Soldiers) units with all its own officers and personnel; the U.S. military did not desegregate until after World War II, and in most of the segregated units, all of the officers were white.  

7.  During World War II, the unit saw combat in Italy as part of the 92nd Infantry Division (colored), 5th Army.  The unit arrived in North Africa on 6 April 1944 and was attached to perform airfield security duties.  On 4 November 1944, the 366th was assigned to Fifth Army and arrived in Livorno, Italy on 21 November 1944 for attachment to the 92nd Infantry Division.  The unit disbanded in Italy on 28 March 1945 and personnel transferred to the 224th and 226th Engineer Regiments (General Service).  

8.  Army Regulation 600-8-22 (Military Awards) states the BSM is awarded for heroism and for meritorious achievement or service in military operations against an armed enemy.  The BSM is authorized for each individual who was cited in orders or awarded a certificate for exemplary conduct in ground combat between 7 December 1941 and 2 September 1945 or whose achievement or service, during that period, was confirmed by documents executed prior to 1 July 1947.  An award of the CIB is considered to be a citation in orders.  Therefore, the BSM is to be awarded to individuals who were authorized this badge for service during World War II.

9.  Technical Manual 12-235, Discharge Procedures and Preparation of Separation Forms, in effect at the time, provides in paragraph 24 that item 6 of the WD AGO Form 53-55, Organization, be completed as follows:  "Enter the last unit, or similar element to which he was assigned, rather than the element of which he was a part while moving to a separation activity.  Assignments to units for purpose of transfer from a theater to the United States are considered part of the movement to a separation activity."

DISCUSSION AND CONCLUSIONS:

1.  Counsel provided general orders which awarded the applicant the CIB while assigned to the 366th Infantry Regiment during WWII.  Although CIB orders are not filed in his available records, these are accepted as sufficient evidence to show he was awarded the CIB.  As a result, he is entitled to correction of his records to show this award. 

2.  Regulatory guidance provides for award of the BSM for individuals who were awarded the CIB as cited in orders or were awarded a certificate for exemplary conduct in ground combat between 7 December 1941 and 2 September 1945.  Therefore it would be appropriate to award him the BSM based upon award of the CIB.

3.  The available evidence shows the 366th Infantry Regiment was disbanded on 28 March 1945 and Soldiers were transferred to either the 224th or 226th Engineer Regiments (General Service) for completion of their periods of service.  This information is consistent with the organization shown in item 6 of his WD AGO Form 53-55.  

4.  While it is certainly understandable that the applicant and his counsel desire the 366th Infantry Regiment be listed as his unit of assignment, regulatory guidance states the last unit of assignment would be listed.  The fact that the applicant was assigned to that unit from 29 March 1945 until he was discharged in November 1945, gives credence to the fact that it was not a transitory unit.  As such, there appears to be no error or injustice as it pertains to his organization of assignment.

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:
	a.  awarding him the BSM based upon award of the CIB; and

	b.  amending his WD AGO Form 53-55 by:

* adding the CIB to item 31
* adding the BSM to item 33

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 changing his organization to show the 366th Infantry Regiment.   

3.  The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices made by him in service to the United States during WWII.  The applicant and all Americans should be justifiably proud of his service in arms.




      __________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)                                         AR20110023054





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ABCMR Record of Proceedings (cont)                                         AR20110023054



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