MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:         14 October 1998   
	DOCKET NUMBER:   AC98-10589

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

	Mr. Loren G. Harrell			Director	
	Ms. Deborah L. Brantley			Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone			Chairperson	
	Mr. Ernest M. Willcher			Member	
	Mr. Robert W. Garrett			Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether he application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military records

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

APPLICANT REQUESTS:  Award of the Combat Infantryman Badge.  He states, in effect, that he was exposed to hostile fire and participated in many combat operations with infantry units while in Vietnam in spite of the fact that he was a combat engineer.  He states that he believes he is entitled to the Combat Infantryman Badge.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

He entered active duty on 27 June 1966 and was assigned to Vietnam in May 1968 as a combat engineer with 307th Engineer Battalion of the 3rd Brigade, 82nd Airborne Division.  The applicant returned to the United States in April 1969 and on 8 May 1969 was released from active duty.

There are basically three requirements for award of the Combat Infantryman Badge.  The soldier must be an infantryman (11 series specialty), assigned to an infantry unit during such time as the unit is engaged in active ground combat, and must have actively participated in such ground combat.  Personnel with other than an infantry specialty are not eligible, regardless of the circumstances. The applicant was a combat engineer (specialty 12B), not infantry, and is therefore not eligible for the Combat Infantryman Badge.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 8 May 1969, the date he was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 8 May 1972.

The application is dated 29 April 1997 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__JNS___  __EMW__  __RWG__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director