MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            25 August 1999    
	DOCKET NUMBER:   AR1999019629

	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. Luther L. Santiful		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Allen L. Raub		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, and correction of his DD Form 214 to show he was assigned to an infantry unit of the 1st or the 25th Infantry Division in Vietnam from May 1967 to May 1968.

He states that his service with an infantry unit in Vietnam entitles him to the 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:

The applicant enlisted in the Army for four years on 6 January 1966, and completed training as an infantryman (mortar gunner, military occupational specialty (MOS) 11C10).  He received nonjudicial punishment under Article 15, UCMJ, on 28 April 196 for failure to obey a lawful order, and again on                11 May 1966 for failure to prepare for guard mount.  In May of 1966 he was assigned to a reconnaissance squadron of the 14th Armored Cavalry in Germany.  He received nonjudicial punishment on 1 September 1966 for failure to go to his appointed place of duty, and again on 24 February 1967 for missing bed check.

In May 1967 the applicant was assigned to Headquarters Company,                 2nd Battalion, 34th Armor, of the 25th Infantry Division in Vietnam, as a personnel carrier driver, and in September of that year to Company B of that battalion.  In November his MOS was changed to 11E10 (armor crewman).  The applicant’s enlisted qualification record shows that he was promoted to pay grade E-3 in May 1967, reduced to pay grade E-2 in December, and again promoted to pay grade E-3 in February 1968, all with the 2nd Battalion, 34th Armor. 

The applicant completed his tour in Vietnam and in July 1968 was assigned to Fort Benning, Georgia.  He received nonjudicial punishment in September 1968 for failure to go to his place of duty.  On 6 November 1968 the applicant was arraigned, tried by a special court-martial, and he pled guilty to AWOL from          1 October 1968 to 23 October 1968, failure to go to his appointed place of duty, and willful disobedience of a lawful order.

In February 1969 the applicant was assigned to a squadron of the 7th Cavalry in Germany.  On 6 August 1969 the applicant received nonjudicial punishment for sleeping on guard duty.

The applicant returned to the United States and was released from active duty on 19 January 1970 at Fort Dix, New Jersey.  He had 3 years, 11 months, and        22 days of service, and 22 days of lost time.  His DD Form 214 does not show award of the Combat Infantryman Badge, nor does his enlisted qualification record.  There are no orders in the applicant’s record to show that he received that award.  His DD Form 214 appropriately shows the dates of his three overseas assignments, and his last duty assignment and major command   (Troop B, 3d Squadron, 7th Cavalry, USAREUR).

Army Regulation 600-8-22 provides, in pertinent part, that the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry MOS.  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  The Awards Branch, Total Army Personnel Command has advised, in similar cases, that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11F, 11G, or 11H.

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 19 January 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 19 January 1973.

The application is dated 21 January 1999 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

____lls_  ___le___  ___alr_____  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999019629	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990825	
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.		
4.		
5.		
6.