MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:       14 October 1998        
	DOCKET NUMBER:   AC98-10599

	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.

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 served an initial period of active duty with the United States Marine Corps between May 1968 and November 1969 and served in Vietnam between November 1968 and August 1969.

On 11 June 1970 he enlisted in the Army and was assigned to Germany as an infantryman.  On 30 April 1971 he was discharged for the purpose of immediate reenlistment with concurrent reassignment to Vietnam.  On 15 May 1971 the applicant departed Germany enroute to Fort Lewis, Washington for reassignment to Vietnam.  However, on 25 June 1971 he was reported AWOL and remained absent until 25 April 1972.

Following a special court-martial in December 1972 he was restored to active duty and remained in an active status until 5 March 1975 when he was honorable discharged.  There is no evidence the applicant was ever assigned to Vietnam while a member of the Army.

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.  Although the applicant was an infantryman there is no evidence he was ever assigned to an infantry unit engaged in active ground combat while a member of the Army.  Although he may have service in such a capacity with the Marine Corps such service would not be a basis for awarding an Army 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 5 March 1975, 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 
5 March 1978.

The application is dated 11 August 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