MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           09 AUGUST 2001                   
	DOCKET NUMBER:   AR2001056666

	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:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Ms. Gail J. Wire		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).  

The applicant states that he was issued the CIB while serving with Company C, 279th Infantry Regiment of the 45th Division in September or October of 1952.   His separation documents should have reflected that award.  He states that he cannot understand why his branch reflects USAR Signal when he took basic training at Fort Jackson, South Carolina as an infantryman, and served 8 months in Korea as an infantryman.  He was wounded in battle on 13 February 1953, and after being released from the hospital, finished his tour of duty as a clerk with the 71st Transportation Army Aviation Field Depot Company.

He states that inasmuch as his DD Form 214 (Report of Separation) shows his specialty as signal – when he returned from Korea he was assigned to Fort Meade, Maryland for the last three months of his military obligation, and has been advised that Fort Meade was a Signal Corps installation.  He states that he meets the eligibility requirements for award of the CIB.  He states that he has just been made aware of this situation [that his DD Form 214 does not show award of the CIB].  He deserves to be recognized for his front line service.

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 were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein, the applicant’s DD Form 214, was furnished by the applicant.

The applicant’s DD Form 214 shows that he entered on active duty on               28 January 1952, served with Company C of the 279th Infantry Regiment in Korea and was wounded on 13 February 1953.  He was released from active duty on 27 January 1954 at Fort Meade.  He had 2 years of service, of which      1 year, 1 month, and 27 days was foreign and/or sea service.

His component and branch or class as shown in item 4 of his DD Form 214 is “RA SIG.”  His component and branch or class in item 16 (Enlisted in or Transferred to a Reserve Component) is “USAR SIG.”  The applicant was 

awarded the Korean Service Medal with three bronze service stars, the Good Conduct Medal, the National Defense Service Medal, the United Nations Service Medal, and the Purple Heart.  That form does not show any training that he completed, and does not show award of the CIB.  The applicant signed the form, attesting to its accuracy.

There are basically three requirements for award of the CIB.  The soldier must be an infantryman satisfactorily performing infantry duties, must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and must actively participate in such ground combat.  Campaign or battle credit alone is not sufficient for award of the CIB. 

There is no evidence, nor has the applicant provided any, to indicate that he was an infantryman or that he was performing infantry duties, and as such there is no basis for award of the CIB.
  
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 27 January 1954, 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 27 January 1957.

The application is dated 21 April 2001 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.  Prior to reaching this determination the Board reviewed his DD Form 214 and considered the applicant’s contentions.  It was only after all aspects of his 

case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.
 
BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__INW __  __FNE __  __GJW__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001056666	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010809	
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.	157	
4.		
5.		
6.