RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         28 March 2006
      DOCKET NUMBER:  AR20050008013


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Larry J. Olson                |     |Member               |
|     |Mr. Ronald D. Gant                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, award of the Combat Infantryman
Badge (CIB).

2.  The applicant states, in effect, he believes he deserves this award
because he served in the Demilitarized Zone (DMZ) in Korea during a
qualifying period.  He further states he has a service connected disability
and while researching to replace his medals, he discovered that he was
qualified for the CIB based on his service in Korea.

3.  The applicant provides the following documents in support of his
application:  Separation Document (DD Form 214); Enlisted Evaluation Report
(EER); and Research Paper on CIB Eligibility.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 27 May 1977.  The application submitted in this case is
dated
19 May 2005.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's record shows that he enlisted in the Regular Army and
entered active duty on 21 November 1974.  he was trained in, awarded, and
served in military occupational specialty (MOS) 11B (Infantryman), and the
highest rank he attained while serving on active duty was specialist four
(SP4).

4.  The applicant's Personnel Qualification Record (DA Form 2-1) shows that
he served in the Republic of Korea from 5 May 1975 through 31 May 1976.
During his ROK tour, he was assigned to Company B, 1st Battalion, 73rd
Armor from
16 May through 12 August 1975; and then to Combat Service Company (CSC),
1st Battalion, 31st Infantry from 13 August 1975 through 31 May 1976.  In
both units he served in MOS 11B, as a light weapons infantryman and then as
an Armored Personnel Carrier (APC) driver.
5.  Item 9 (Awards and Decorations) of the applicant's DA Form 2-1 shows
that the only decoration he earned during his active duty tenure was the
Expert Qualification Badge with Rifle Bar.  There are no individual awards
listed in his record.

6.  The applicant's Military Personnel Records Jacket (MPRJ) is void of any
orders, or other documents that indicate he was ever recommended for, or
awarded the CIB by proper authority.

7.  On 27 May 1977, the applicant was separated with a general, under
honorable conditions discharge after completing a total of 2 years, 5
months, and 23 days of active military service, and accruing 14 days of
time lost due to being absent without leave (AWOL).  The DD Form 214 he was
issued upon his separation confirms that he earned the Expert Qualification
Badge with Rifle Bar, and the applicant authenticated this document with
his signature.

8.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and
criteria concerning individual military awards.  Paragraph 8-6 provides for
award of the CIB.  That paragraph states that there are basically three
requirements for award of the CIB.  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.  Paragraph
8-6h provides guidance on award of the CIB for Korea subsequent to 4
January 1969.  It states, in pertinent part, that in order to eligible for
the CIB for Korea a member must have been engaged with the enemy in the
hostile fire area or in active ground combat involving an exchange of small
arms fire at least 5 times, and must have been personally recommended by
each commander in the chain of command, and the award had to be approved at
division level.

9.  Army Human Resources Command Message (Date Time Group 9 February 2004)
published implementing instructions for award of the KDSM.  It specified
that all members who served in Korea for 30 consecutive or 60
nonconsecutive days from 28 July 1954 through a future date to be
determined by the Secretary of Defense were eligible for this award.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contention that he should receive the CIB based on his
service on the DMZ in Korea during a qualifying period, and the supporting
documents he submitted were carefully considered.  However, there is
insufficient evidence to support granting the requested relief.

2.  By regulation, in order to qualify for the CIB for Korea subsequent to
4 January 1969, there must be evidence showing the member engaged with the
enemy in the hostile fire area or in active ground combat involving an
exchange of small arms fire at least 5 times, and the member must have been
personally recommended by each commander in the chain of command, and the
award had to be approved at division level.  Service in authorized combat
area alone is not sufficient to support award of the CIB.

3.  The applicant's record is void of any indication that he engaged with
the enemy in the hostile fire area or in active ground combat involving an
exchange of small arms fire at least 5 times while serving in the ROK.
Further, there is no evidence that shows he was personally recommended for
the CIB by each commander in his chain of command, or that he was awarded
the CIB by the proper authority.  Absent any evidence confirming his
participation in active ground combat with enemy forces, the regulatory
burden of proof necessary to support award of the CIB has not been
satisfied in this case.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 May 1977, the date of his
separation. Therefore, the time for him to file request for correction of
any error or injustice expired on 26 May 1980.  He failed to file within
the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.

5.  The evidence of record confirms that based on his service in Korea, the
applicant is entitled to the KDSM.  The omission of this award from his
record is an administrative matter that does not require Board action to
correct.  As a result, the applicant’s records will be administratively
corrected by the Case Management Support Division (CMSD), St. Louis,
Missouri, as outlined by the Board in paragraph 3 of the BOARD
DETERMINATION/RECOMMENDATION section below.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__BJE __  ___LJO__  __RDG  _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.

3.  The Board determined that administrative error in the records of the
individual should be corrected.  Therefore, the Board requests that the
CMSD-St. Louis administratively correct the records of the individual
concerned to show his entitlement to the Korean Defense Service Medal; and
by providing him a correction to his separation document that includes this
award.




                                  _____Barbara J. Ellis_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050008013                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/03/28                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1977/05/27                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY with Adm Note                      |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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