MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           15 March 2001                  
	DOCKET NUMBER:   AR2000046831

	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. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Thomas E. O’Shaughnessy		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:  Combat pay for his service in Korea from                 20 May 1951 to 7 March 1952.  

The applicant states that he had previously received one month of combat pay for time with the 5th Regimental Combat Team of the 24th Infantry Division.  The applicant makes reference to General Orders Number 80, 22 November 1954, which he attaches with his application.  He states that he is entitled to combat pay while serving with the 955th Field Artillery Battalion in Korea.   

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 entered on active duty on 7 December 1950, completed training, and was assigned to a replacement unit in Korea.  From 21 May to 27 May 1951 he was assigned to the 24th Replacement Company; from 27 May to 1 July 1951 with Company I, 5th Infantry Regiment as a light weapons infantryman; and from 1 July 1951 to 11 March 1952 as a radio and teletype operator with Headquarters and Headquarters Battery, 955th Field Artillery Battalion.  He returned to the United States in March 1952 and was released from active duty at Fort Meade, Maryland on 6 September 1952. 

An 11 April 1955 Combat Pay Case Brief indicates that the applicant was approved for combat pay for June of 1951, and disapproved for all the other periods that he requested.  That case brief included copies of correspondence to and from a Member of Congress (MC), The Adjutant General, and the Commanding General of the Finance Center. 

On 29 April 1955, in response to a MC, an Army colonel stated that the applicant’s records had been thoroughly reviewed, and that he qualified for combat pay for the month of June 1951 by virtue of his assignment with the      5th Infantry Regiment.  That officer stated, that based on the information furnished by the applicant concerning his assignment with the 955th Field Artillery Battalion as a radio operator with the radio section, and as chief of the message center; and taking into consideration the statements furnished on behalf of the applicant, e.g., that the trips which the applicant made to and from front line infantry units and forward observer posts would often have been of a hazardous nature; it was determined that such service did not meet the requirements for combat pay as set forth in the Combat Duty Pay Act of 1952.  That officer stated that the act required that an individual must have been present and serving in a combat unit in order to qualify for combat pay, and that the determination made in the applicant’s case was consistent with other cases of a similar nature.  A memorandum for record on the record copy of that response indicates that the battalion S-2, for whom the applicant worked, was also denied combat pay.

In a 16 May 1960 letter to the Chief of Claims Division of the General Accounting Office the applicant again requested combat pay, stating that while assigned as a radio jeep operator with the battalion S-2, they were required to make several visits each week to the front line infantry companies which were supported by the 955th Field Artillery Battalion.  He stated that he had applied for combat pay on two previous occasions and was forwarded a check for $45.00 for one month’s combat pay.  He stated that both he and the S-2 officer were subjected frequently to hostile fire, which amounted to much more than six days per month required for an individual to qualify under the provisions of the Combat Pay Act of 1952.  

In response, the Chief, Personnel Law Branch, Military Affairs Division, Office of The Judge Advocate General, informed the applicant that Army Regulation      35-1270 implemented the Combat Duty Pay Act of 1952, and provided for the listing of combat units during the period 31 May 1950 to 30 June 1952 in general orders, and delegated authority to The Adjutant General to make determinations of fact with respect to periods of qualification for combat pay.  General Orders Number 41 listed Forward Observer Parties only of Headquarters and Headquarters Battery, 955th Field Artillery Battalion as combat units during certain periods of the war.  That official stated that the applicant qualified for combat pay for the month of June 1951; however, not for any other period of time, in that he was not a member of a forward observer party. 

General Order Number 80, furnished by the applicant, pertains to units that are entitled to battle credits and assault landings.  

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 14 June 1960, the date that he was informed that he was not qualified for any additional combat pay.  The time for the applicant to file a request for correction of any error or injustice expired on          14 June 1963.

The application is dated 30 August 2000 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

___emw__  ___teo__  ___rtd___  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2000046831	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010315	
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.  283	142.00	
2.	128.00	
3.		
4.		
5.		
6.