MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            18 August 1999    
	DOCKET NUMBER:   AR1999017027

	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	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Edward Williamson		Member	
	Ms. Sherri V. Ward		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 (CIB) and physical disability retirement or separation.

He states that he earned the CIB, and the individual who was going to recommend him for the award did not get the opportunity to do so before he was killed.  He sustained a back injury as a result of a parachute jump while assigned to a unit of the 82nd Airborne Division at Fort Bragg, North Carolina in 1968.  He was on light duty for 7 or 8 weeks.

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:

The applicant enlisted in the Army for three years on 14 February 1968, completed training as a cable splicer, MOS (military occupational specialty) 36E20, and was awarded that MOS on 21 August 1968.  In May he was assigned for duty at Sheppard Air Force Base in Wichita Falls, Texas.  In October 1968 he was assigned to Company A, 4th Battalion, 325th Infantry, at Fort Bragg, North Carolina.  In April 1969 the applicant was assigned to a battalion of the 506th Infantry in Vietnam as a messenger, MOS 36K20.  He was reduced to private E-2 for misconduct on 31 May 1969, promoted to pay       grade E-3 in August of that year, and reduced to pay grade E-1 in March 1970.

The applicant completed his tour in Vietnam, and in May 1970 was assigned to Fort Benning, Georgia.  On 20 October 1970 the applicant requested an early separation from the Army on or about 20 December 1970 to attend the University of Middle Georgia College.  His request was approved on 23 October 1970.  

A DA Form 1811 (Physical and Mental Status on Release from Active Service) indicates that his physical condition on 24 December 1970 was such that he was considered physically qualified for separation without re-examination.  The applicant was released from active duty on 24 December 1970.  He had 2 years, 10 months, and 11 days of service.  His DD Form 214 shows his specialty as 36E20, cable splicer, as does his DA Form 20 (Enlisted Qualification Record).  His records do not show that he had been awarded an infantry MOS or served as an infantryman.

The applicant was discharged from the Army Reserve on 1 February 1974.

Army Regulation 600-8-22 prescribes Army policy and procedures concerning 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.  Specific requirements state, in effect, that an Army enlisted soldier must be have an infantry or special forces specialty, satisfactorily performed duty while assigned or attached as a member of an infantry, ranger or special forces unit of brigade, regimental, or smaller size during any period such unit was engaged in active ground combat.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

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 24 December 1970, the date of his release from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 24 December 1973.

The application is dated 16 July 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

___rvo__  ___ew___  ___svw__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999017027	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990818	
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. 107.00		
3. 108.00		
4.		
5.		
6.