BOARD DATE:	  25 July 2013

		DOCKET NUMBER:  AR20130000408 


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 and a second award of the Bronze Star Medal based on the Combat Infantryman Badge.  He also requests, in effect, a correction of his WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Service) to show the:

* Bronze Star Medal (1st Oak Leaf Cluster)
* Combat Infantryman Badge

2.  The applicant states, in effect, the Bronze Star Medal is not shown on his WD AGO Form 53-55 and that he earned the Combat Infantryman Badge.  He adds:

	a.  Although some men from the Army Air Corps, who fought as infantry during the Battle of Bataan because of a lack of planes, have applied for the Combat Infantryman Badge in the past and been denied, and others approved, he was urged to petition for the medal, because, without question, they fought as infantry.  There is one thing that he wants to point out, however, which he believes needs clarifying, and correcting, concerning the activities of the men of the 16th Squadron of the 27th Bomb Group, during the fighting on Bataan.  

	b.  Shortly after training during Louisiana maneuvers, they were shipped overseas.  They left California on November 1st in two army transports -- one carried their troops and the other their airplane.  They arrived in Manila on 
20 November, and 18 days later they were at war with Japan.  But, unfortunately what happened to their ships at Pearl Harbor also happened to their planes in the Philippines.  Most were destroyed on the ground about 9 hours after Pearl Harbor, and the few that could still fly took off for Australia, leaving them to fight a war without any planes.  At the outbreak of the war, they were all issued World War II .30 caliber Springfield rifles with bayonet and ammunition, a .45 caliber automatic pistol with ammunition, and a gas mask.  Those who had never handled a rifle were instructed on its use, and those who were brought up with rifles were exempt.  Most of these weapons issued to the men of the 16th were eventually fired at the enemy in one place or another.  But their planes had not yet arrived in the Philippines when the war broke out, and they were not among the ones destroyed by the Japanese bombers and fighters. 

	c.  When the war began, their planes were somewhere between the Hawaiian Islands and the Philippines, but instead of letting them continue on to Manila, they were diverted to Australia without their knowledge.  Since they were still expecting the planes, and since their airfields were also now completely destroyed, they decided to move to an area about 50 miles south of Manila and construct a landing strip in a sugar cane field from which their planes could operate.  They only spent one night there, because the Japanese made a major landing of troops about 35 miles from where they were, and they had to quickly pack-up and head back up to Manila.  They waited until nightfall to avoid Japanese planes, and when they arrived in Manila around midnight, they were told to drop everything and get on one of the boats that were ferrying troops across the bay to the Bataan Peninsula.  Many of the men did just that, but many of them decided that they were not about to abandon the tools that they had with them for working on their planes, because they would need those when their planes arrived.  So instead of going by boat, they decided to go by truck even though there was a possibility of running into Japanese troops on the way.  The trip was about 100 miles, but they made it without incident, arriving on the peninsula at dawn.  

	d.  Then they were notified that there were some planes waiting for them at an airstrip near the tip of the peninsula near a place called Cab Cabin.  One can imagine their joy, because their planes had arrived, and they had saved the tools to work on them.  But their joy was short lived, because when they arrived at the air strip, what they found was not their dive bombers, but 8 or 9 P-40's, which none of their pilots had ever flown.  But now they were theirs because they were the only Squadron that had arrived with tools to work on planes.  That is undoubtedly why the 16th Squadron was not included as part of the Provisional Infantry that was later formed.

	e.  But it did not take all of the men of the 16th to take care of those few planes.  That was done with about a dozen of their more experienced mechanics, and the rest of them were used in various other ways of fighting, or defense.  They were given a portion of the beach to defend in case of the Japanese coming to their area, and they were called out one night because of a threat.  His assignment was Runner, [illegible] messages between two men on the beach, and their command post higher up in the hills.  Although no actual enemy landings were made in their designated area, the squadron did furnish men to fight the Japanese where they made beach landings behind their front lines, in areas assigned to others.  Toward the end of the fighting, when their front lines were in danger of being breached by the Japanese, the 16th Squadron did send more of them to assist in its defense, but to no avail.  By then, no one was in physical shape to do any major fighting, and everyone knows the rest of the story.

	f.  Now, did he fight as infantry? All he knows is that he was not used by the army in the defense of Bataan for the job in which he was trained, which was that of an airplane mechanic.  His assignment was manning a .50 caliber machine gun on their airstrip, and firing on attacking Japanese to protect their planes and the airstrip from which their airplanes operated, and Runner when called out to defend their beach position.  The airstrip was repeatedly put out of use by Japanese heavy bombers, and more often attacked by Japanese fighters and dive bombers.  Because of fox holes, he survived many attacks without a scratch, but eventually was wounded by shrapnel during one of the raids.  When they were debriefed upon their return to the states, he was told to put in for a Purple Heart, a medal he knew nothing about at the time.  Was it awarded because of that shrapnel wound, or wounds suffered under the hands of the Japanese while in prison camp, he is unsure?  He was also later awarded the Bronze Star Medal at a later date at a ceremony held at England Air Force Base.

	g.  Because he felt that they, men of the 16th Bomb Squadron, are being overlooked concerning the part that they played during the Battle of Bataan, he thought it necessary to include this statement to go along with the other material that he submitted, to correct its history.  He believes that they were not listed as Provisional Infantry because they were given the planes to take care of, but as mentioned above, that job was handled by only a few men, and the others of them were essentially employed as infantry.  Military awards that he has received for his service are the Bronze Star Medal, Purple Heart, POW Medal, American Campaign Medal, Asiatic-Pacific Campaign Medal with 2 bronze stars, Army Good Conduct Medal, American Defense Medal with one bronze star, World War II Victory Medal, Philippine President Badge, Philippine Defense Medal, Philippine Liberation Medal, and Philippine Independence Medal.  

3.  He also states with regard to the Battle of Bataan:

	a.  The unit was led into battle for a period of time by Colonel IED, 31st Infantry Regiment.  They fought on the front lines with units whose members were awarded the Combat Infantryman Badge.  The Army Air Forces (AAF) combatants participated in the battles as combat infantrymen.  In accordance with War Department (WD) Circular 269, dated 27 October 1943, and WD Circular 105, dated 13 March 1944, combatants met circumstances which qualified for the Combat Infantryman Badge.  A member of the U.S. Army was not required to possess the Military Occupational Specialty (MOS) of an infantryman or be assigned to an infantry unit.  The requirement was "any infantryman."

	b.  The requirement for a combatant to be assigned to an infantry unit was not effective until 11 May 1944 when WD Circular 186 was initiated.  However, the guideline was not retroactive to an earlier date, and did not amend WD Circulars 269 and 105 which involved participants in combat during 1941/1942.  The acts met requirements to be eligible for the Combat Infantryman Badge at that specific time (6 December 1941 to 11 May 1944).  The determination toward award of the Combat Infantryman Badge would be confined to personnel who basic branch was infantry and who during active ground combat were assigned to Table of Organization Infantry (TOI) units was effective 1 November 1944 when WD Circular 408 was approved on 11 October 1944.  Furthermore, the requirement for the MOS was not required until the 1960's.  Such requirements were not retroactive.  According to legal counsel, by considering requests of awards and decorations with guidelines after the act was performed and/or incurred wound is a violation of the U.S. Constitution. 

	c.  Applying recent WD Circulars, the Army Board for Correction of Military Records (ABCMR) purports to consider guidelines developed after the fact.  The unfairness of this consideration is obvious.  If they were to be applied to all cases, it would call for the removal of awards and decorations from those veterans previously awarded them.  In fact, application of later guidelines to facts surrounding 1941 and 1942 events constitutes ex post facto application of law, specifically prohibited in the U.S. Constitution by the prohibitions in Article 1, Section 9, Clause 3, against bills of attainder and ex post facto laws.  Awards and decorations, like other rights, must be considered as of the date that the benefit was earned.  Application of different standards, arising out of different sensibilities in different wars, wreaks havoc on any sense of equal application of laws.  The fact that the Army in May and November 1944 chose to change the policy relating to the Combat Infantryman Badge cannot be applied to the facts of this case.

	d.  In accordance with Army Regulation 600-8-22 (Military Awards), paragraph (2), dated 11 December 2006, and Code of Federal Regulations, dated 2007-07-01, as a recipient of the Combat Infantryman Badge, he earned the Bronze Star Medal.  He requests this Board grant him the Bronze Star Medal [with] the Combat Infantryman Badge as his counterparts received for serving as infantry combatants during the period on or after 6 December 1941 to 10 May 1942 in accordance with guidelines, and previous procedures of the U.S. Army and U.S. Army Reserve. 

4.  The applicant provides:

* WD AGO Form 53-55
* Honorable Discharge Certificate
* Special Orders (SO) GB-232 and citation for award of the Bronze Star Medal
* Printout title U.S. Air Force Fact Sheet - Bataan Death March
* Research paper titled "Corps in Defense" related to Bataan March
* Research paper titled "Operations of the Provisional Air Corps Regiment in the Defense of Bataan Peninsula"
* War Department Circular Number 269
* War Department Circular 100
* Extract of the Code of Federal Regulation

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 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 and entered active duty in Shreveport, LA, on 23 August 1940. This form also shows that at the time of his separation, the applicant held military occupational specialty (MOS) 747 (Airplane and Engine Mechanic) and he was assigned to the 16th Bomb Squadron. 

4.  His WD AGO Form 53-55 shows he departed the continental United States (CONUS) on 1 November 1941 and he arrived in the Asiatic-Pacific Theater of Operations (APTO) on 20 November 1941.  He departed the APTO on an unknown date and arrived back in CONUS on 20 October 1945.  

5.  He completed 1 year, 6 months, and 5 days of continental service and 3 years, 11 months, and 20 days of foreign service.  He was honorably discharged on 17 February 1946 at Camp Shelby, MS. 

6.  Item 31 (Military Qualifications and Date (i.e. infantry, aviation, and marksmanship badges, etc.)) of his WD AGO Form 53-55 shows the entry "None." 

7.  Item 32 (Battles and Campaigns) of his WD AGO Form 53-55 shows he participated in the Southern Philippines and Luzon campaigns during World War II (WWII).

8.  Item 33 (Decorations and Citations) of the applicant's WD AGO Form 53-55 shows he was awarded or authorized the American Defense Service Medal, “ATO MED,” Asiatic-Pacific Theater of Operations Medal, Philippine Liberation Medal, Good Conduct Medal, and World War II Victory Medal.

9.  Item 34 (Wounds Received in Action) of the applicant's WD AGO Form 53-55 contains the entry "None." 

10.  Item 4 (Arm or service) of the applicant's WD AGO Form 53-55 shows the entry "AC" indicating he was in an Air Corps branch of service.

11.  SO GB-232, issued by the Department of the Air Force on 27 April 1984, awarded him the Bronze Star Medal for service from 2 January 1942 to 16 August 1945.  The citation reads:

[Applicant] distinguished himself by meritorious service while engaged in ground combat against an enemy of the United States in defense of the Philippine Islands from 2 January 1942 to 16 August 1945.  Displaying magnificent courage and devotion to duty, [Applicant] inflicted heavy losses while engaging an enemy force of superior size and weaponry.  [Applicant] displayed undaunted valor not only in the engagement of the enemy in combat, but in his conduct under impossible and unbearable conditions while being held in a prisoner of war from 9 April 1942 to 
16 August 1945.  By his heroic actions and unselfish dedication to duty, [Applicant] has reflected great credit upon himself and the United States Air Force. 

12.  War Department Circular Number 269, dated 27 October 1943, states the present war has demonstrated the importance of highly proficient, tough, hard, and aggressive infantrymen, which can be attained only by developing a high degree of individual all-around proficiency on the part of every infantryman.  As a means of attaining the high standards desired and to foster espirit de corps in infantry units, the Expert and Combat Infantryman Badge were established for infantry personnel. 

	a.  The Combat Infantryman Badge is awarded to "infantrymen" including officers.  The eligibility to wear the Combat Infantryman Badge can be established by (1) Exemplary conduct in action against the enemy, or (2) By satisfactory performance of duty in actions against the enemy in a major operation as determined or announced by the theater commander.

	b.  Announcement of the award of the Combat Infantryman Badge will be made in unit orders and presentation will be in an appropriate ceremony.  Within the regiment, award may be made by the regimental commander upon the recommendation of the company commander.  

13.  War Department Circular 100, dated 13 March 1944, amended War Department Circular Number 269, regarding the retroactive award of the Combat Infantryman Badge.  It states the Combat Infantryman Badge may be awarded to any infantryman who, on or after 6 December 1941, has established eligibility and had been recommended for such award under the provisions of paragraph 2b or 3 of the circular.  

14.  War Department Circular Number 186 dated 1944 further provided that the Combat Infantryman Badge was to be awarded only to infantrymen serving with infantry units of brigade, regimental or smaller size.  The Military Awards Branch of the U.S. Army Human Resources Command has advised in similar cases that, during WWII, the Combat Infantryman Badge was normally awarded only to enlisted individuals who served in the following positions:

   a.  Light machine gunner (604)			b.  Heavy machine gunner (605)
   c.  Platoon sergeant (651)					d.  Squad leader (653)
   e.  Rifleman (745)							f.  Automatic rifleman (746)
   g.  Heavy weapons NCO (812)			h.  Gun crewman (864)

15.  War Department Circular 408 replaced War Department Circular 186.  War Department Circular 408 stated:  "Effective 1 November 1944 the award of the Expert Infantryman Badge and the Combat Infantryman Badge is restricted to officers, warrant officers and enlisted men assigned to infantry regiments, infantry battalions and elements thereof designated as infantry in tables of organization or tables of organization and equipment.  Personnel of the Medical Department and the Corps of Chaplains are not eligible for this award (see pars. 6c and 11)."

16.  War Department Circular Number 408, dated 17 October 1944, provides for awards of the Expert and Combat Infantryman Badge.  It states, in pertinent part, that Public Law 503, approved on 30 June 1944, provided that during the present war (WWII) and for 6 months thereafter, any enlisted man of the combat ground forces of the Army who is entitled under regulations to wear the Combat Infantryman Badge shall be paid additional compensation. 

17.  War Department Circular 93 rescinded the quotation from War Department Circular 408 in paragraph 4, above, and replaced it with the following:  "Effective 1 November 1944 the award of the Expert Infantryman Badge the Combat Infantryman Badge is restricted to officers, warrant officers, and enlisted men assigned to infantry regiments, infantry battalions, and elements thereof designated as infantry in the tables of organization or tables of organization and equipment.  In addition to the above, infantry officers, warrant officers, and enlisted men who are attached to infantry regiments, infantry battalions, and elements thereof designated as infantry, of the United States forces or of any of the Allied Nations military forces are eligible for the infantryman badges.  In these cases, when the individual concerned is not assigned to an infantry regiment or smaller infantry unit, the award will be made by such commanders and in such orders as the theater commander may designate.  Personnel of the Medical Department and the Corps of Chaplains are not eligible this award (see pars. 6c and 11).  Officers, warrant officers, and enlisted men in infantry training regiments and battalions of replacement training centers, schools, and replacement depots are eligible for award of the expert infantryman badge.”

18.  Army Regulation 600-8-22 (Military Awards) provides for award of the Bronze Star Medal to members of the armed forces who, after 6 December 1941 and prior to 3 September 1945, have been cited in orders or in a formal certificate for meritorious or exemplary conduct in ground combat against the armed enemy.  A citation in orders for the Combat Infantryman Badge or Medical Badge awarded in the field during the period of actual combat against the armed enemy is considered as a citation for exemplary conduct in ground combat.  It also provides for the wear of one bronze service star on the appropriate campaign or service medal for each credited campaign.  This regulation gives a history of the Combat Infantryman Badge:
	a.  Lieutenant General Lesley J. McNair, then the Army Ground Forces commanding general, was instrumental in its creation.  He originally recommended that it be called the "fighter badge."  The Combat Infantryman Badge was designed to enhance morale and the prestige of the "Queen of Battle."  Then Secretary of War Henry Stinson said, "It is high time we recognize in a personal way the skill and heroism of the American infantry."  

	b.  Originally, the Regimental Commander was the lowest level at which the Combat Infantryman Badge could be approved and its award was retroactive to 
7 December 1941.  Several factors led to the creation of the Combat Infantryman Badge, some of the most prominent factors are as follows:

		(1)  The need for large numbers of well-trained infantry to bring about a successful conclusion to the war and the already critical shortage of infantrymen.

		(2)  Of all Soldiers, it was recognized that the infantryman continuously operated under the worst conditions and performed a mission that was not assigned to any other Soldier or unit.

		(3)  The infantry, a small portion of the total Armed Forces, was suffering the most casualties while receiving the least public recognition.

		(4)  General Marshall’s well-known affinity for the ground forces Soldier and, in particular, the infantryman.  

	c.  All these factors led to the establishment of the Combat Infantryman Badge, an award that would provide special recognition of the unique role of the Army infantryman, the only Soldier whose daily mission is to close with and destroy the enemy and to seize and hold terrain.  The badge was intended as an inducement for individuals to join the infantry while serving as a morale booster for infantrymen serving in every theater.

	d.  In developing the Combat Infantryman Badge, the War Department did not dismiss out of hand or ignore the contributions of other branches.  Their vital contributions to the overall war effort were certainly noted, but it was decided that other awards and decorations were sufficient to recognize their contributions. From the beginning, Army leaders have taken care to retain the badge for the unique purpose for which it was established and to prevent the adoption of any other badge which would lower its prestige.  At the close of World War II, our largest war in which the armor and artillery played key roles in the ground campaigns, a review was conducted of the Combat Infantryman Badge criteria with consideration being given to creating either additional badges or authorizing the badge to cavalry and armor units.  The review noted that any change in policy would detract from the prestige of the badge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Combat Infantryman Badge and the Bronze Star Medal. 

2.  War Department Circular 269, dated 1943 established the Combat Infantryman Badge to recognize and provide an incentive to infantrymen.  The Combat Infantryman Badge was awarded for exemplary conduct in action against the enemy.  War Department 100, dated 13 March 1944, amended War Department Circular Number 269, regarding the retroactive award of the Combat Infantryman Badge.  It states the Combat Infantryman Badge may be awarded to any infantryman who, on or after 6 December 1941, has established eligibility and had been recommended for such award.

3.  The key word here is "infantryman."  From the day it was created to the present day, as the name of this badge indicates, it is awarded to "infantrymen."  The applicant was not an infantryman; he was an aircraft mechanic who, as confirmed by his award of the Bronze Star Medal, undoubtedly was engaged in ground combat against an enemy of the United States in defense of the Philippine Islands from 2 January 1942 to at least 9 April 1942 when he appears to have been taken as a POW.  

4.  However, all Soldiers are provided basic combat skills training after they enter the Army.  This is provided to ensure that all Soldiers have the survival skills to perform basic infantry missions when the need arises, as it did on Bataan.  However, this training, in and of itself, does not qualify the applicant for award of the Combat Infantryman Badge.  The applicant, an aircraft mechanic, used this training to engage the enemy during a major battle in the Philippines.  His vital contributions to the overall war effort were certainly noted.

5.  Based on the various War Department Circulars, beginning in 1944, it is clear that the Combat Infantryman Badge was to be awarded only to infantry personnel in regimental and smaller units as designated in tables of organization and distribution then in effect who performed to standard in ground combat against the enemy.  The applicant’s argument that he is entitled to award of the Combat Infantryman Badge because War Department Circular 100 made it retroactive to December 1941 is not valid.  His argument ignores the basic requirement for award of the Combat Infantryman Badge which is you have to be an infantryman or as stated in the first governing circular "the Expert Infantryman and Combat Infantryman Badges are established for infantry personnel."
6.  Regrettably, the applicant does not meet the criteria for award of the Combat Infantryman Badge.  Likewise, he does not qualify for an award of the Bronze Star Medal based on award of the Combat Infantryman Badge due to his ineligibility for award of the Combat Infantryman Badge.  

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)                                         AR20130000408





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130000408



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1