MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                             8 September 1999 
	DOCKET NUMBER:   AR1999015623

	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 Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Ms. Karen L. Wolff 		Member	
	Mr. Orville W. Troesch, jr.		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 the 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, removal of two days of AWOL from his records and, in effect, that a 1968 summary court-martial be expunged from his records.  He states that he was a permanent member of the “Reno Sector Guard doing the duty of an infantry soldier” and as such contends that he should be awarded the Combat Infantryman Badge.  He also states that he does not agree with the charge that resulted in his conviction by summary court-martial in 1968.  He notes, in effect, that he was sick at the time he and another soldier were in a bunker and that although one individual was required to be alert, the other could be sleeping.  He states that they had been on the “bunker line” for 14 to 16 hours which was longer than the infantry were required to be on guard duty.  He contends, in effect, that his illness and PTSD were factors.  The applicant submits no evidence in support of his request and makes no statement regarding the AWOL period.

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 19 December 1967 and successfully completed basic and advanced individual training as a wheel vehicle mechanic (specialty 63B) prior to being assigned to the 605th Transportation Company in Vietnam in May 1968.

In September 1968 the applicant was convicted by a summary court-martial, in consonance with his plea, of sleeping while on duty as a sentinel.  On 29 January 1970 the applicant was punished under Article 15 of the UCMJ for two days of AWOL (15-16 January 1970).  He submitted no “matters in extenuation, mitigation, or defense” during the proceedings.  His two days of AWOL are recorded on his separation document and in item 44 (lost time) on his DA Form 20 (enlisted qualification record).  There is no evidence, and the applicant does not provide any, that the information contained in his records regarding the AWOL period records is erroneous.

On 11 August 1970 the applicant was honorably discharged from active duty and transferred to the Army Reserve.

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.  The applicant held a 63B specialty and was assigned to a transportation unit while in Vietnam and as such is not entitled to an award of the Combat Infantryman Badge.
The statutory authority under which the Board was created (title 10, United States Code, section 1552, as amended) precludes any action by the Board, which would disturb the finality of a court-martial conviction.

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 11 August 1970, the date the applicant 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 11 August 1973.

The application is dated 3 May 1998 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

___fkm__  ___klw__  ___owt__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999015623	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990908	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	142.00	
2.		
3.		
4.		
5.		
6.