ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 June 2019 DOCKET NUMBER: AR20190006514 APPLICANT REQUESTS: Through his hospice caregiver: * correction of his record to show he was honorably promoted to the rank/grade of sergeant (SGT)/E-5 * correction of his record to add the Combat Infantryman Badge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from the Armed Forces of the United States), dated 6 December 1951 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: * Article 6 of the U.S. Constitution forbids religious tests, requiring a Soldier to be (or not be) of a religion to be promoted is unconstitutional * Department of Defense Directive 1350.2 (Department of Defense Military Equal Opportunity Program) guarantees equal opportunity to all service members regardless of religion * Title 10 USC also upholds equal opportunity in Federal Employment and the U.S. Military for Service members of any religion * he did engage in close combat with the enemy as an infantryman on 28-29 January 1951, shortly after his 21st birthday * although he was given a physical Combat Infantryman Badge for his service, his records do not reflect the award 3. The applicant’s complete military records are not available for review. A fire in 1973 destroyed approximately 18 million service members’ records at the National Personnel Records Center. The Army personnel records affected dated between November 1912 and January 1960. It is believed his records were lost or destroyed in that fire. However, there were sufficient documents provided by the applicant to conduct a fair and impartial review of this case. The applicant provided DD Form 214, dated 6 December 1951. 4. DD Form 214 shows he was honorably released from active duty and shows the following in item number: * 3; (Grade, Rate, Rank and Date of Appointment) corporal temporary * 5; (Qualifications) 3290 (Classification Interviewer) * 6; (Effective Date of Separation) 6 December 1951 * 19; (Date of Entry on Active Duty) 21 October 1950 * 27; (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) Korean Service Medal with 3 bronze service stars * 28; (Most Significant Duty Assignment) Service Company, 8th Cavalry Regiment 5. The applicant provides a support statement from his hospice caregiver that states in pertinent part, as his chaplain, he has spoken at length with the applicant about his experiences during his combat service as an infantryman during the Korean War. Amongst them was the disheartening recollection of being passed over for promotion to SGT because he was a Jew. He issues this request that the applicant be honorably promoted to SGT for his service, dedication, and true faith to the United States of America, even in a time when he suffered persecution in its Army for his relationship with his God. Additionally, although he was physically awarded it following an engagement, his DD Form 214 does not reflect the Combat Infantryman Badge. Although he engaged the enemy many times in close combat, his most certain recollection was 28-29 January 1951, due to its proximity to his 21st birthday. He has earned this emblematic decoration, and every Soldier knows how important it is to infantrymen. 6. AR 600-8-22 (Military Awards) states special provisions exist for Soldiers who served in Korea subsequent to 4 January 1969. Soldiers must have served in the hostile fire area at least 60 days and be authorized hostile fire pay. The Soldier must have been assigned to an infantry unit of company or smaller size and must have been an infantry officer in the grade of captain or lower or in the case of warrant officers and enlisted men must have had an infantry military occupational specialty. The Soldier 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 five times. The Soldier must have been recommended personally by each commander in the chain of command and approved at the division level. There are no provisions for retroactive award of the Combat Infantryman Badge for Korean veterans. 7. 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. The exigencies of combat may require non-infantry Soldiers to temporarily perform the basic infantry duties that all Soldiers are taught, but it is not a basis for the award of the Combat Infantryman Badge. 8. AR 15-185 (ABCMR) paragraph 2-9 states, the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement and the statement of support from his hospice caregiver, the belief that his records were lost or burned in a fire at the National Records Center, the available record of service and the entries on his DD Form 214 showing his grade (CPL)T) and his military specialty (3290 – Assignment Specialist) and his length of service. The Board found no evidence that the applicant was assigned an Infantry MOS and service in an Infantry unit engaged with the enemy or that the applicant had been promoted beyond CPL (T) or denied promotion due to his religious affiliation. Based on a preponderance of evidence, the Board determined that the applicant did not qualify for award of the Combat Infantryman Badge and that the rank reflected on his DD Form 214 was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted.? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. ADMINISTRATIVE NOTE(S): Not Applicable ? REFERENCES: 1 Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 600-8-22 (Military Awards) states special provisions exist for Soldiers who served in Korea subsequent to 4 January 1969. Soldiers must have served in the hostile fire area at least 60 days and be authorized hostile fire pay. The Soldier must have been assigned to an infantry unit of company or smaller size and must have been an infantry officer in the grade of captain or lower or in the case of warrant officers and enlisted men must have had an infantry military occupational specialty. The Soldier 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 five times. The Soldier must have been recommended personally by each commander in the chain of command and approved at the division level. There are no provisions for retroactive award of the Combat Infantryman Badge for Korean veterans. 3. 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. The exigencies of combat may require non-infantry Soldiers to temporarily perform the basic infantry duties that all Soldiers are taught, but it is not a basis for the award of the Combat Infantryman Badge. 4. AR 15-185 (ABCMR) paragraph 2-9 states, the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. ABCMR Record of Proceedings (cont) AR20190006514 4 1