MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           26 JULY 2001                   
	DOCKET NUMBER:   AR2001057602

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor 		Chairperson	
	Mr. Hubert O. Fry		Member	
	Mr. Eric N. Andersen		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:  That his records be corrected to reflect award of the Combat Infantryman Badge.  He states that he was assigned to the "2nd of the 12th Infantry," 25th Infantry Division in Vietnam for 1 year and as such believes he is entitled to the Combat Infantryman Badge.  He submits no evidence in support of his request.

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 served on active duty as an infantryman (specialty 11B) between 28 March 1968 and 27 March 1970.  The applicant was assigned to Vietnam in August 1968.  He was initially assigned to Company B, 2nd Battalion, 12th Infantry, 25th Infantry Division.  Those assignment orders were subsequently revoked and on 21 September 1968 the applicant was assigned to Headquarters and Headquarters Detachment of the 25th Aviation Battalion, 25th Infantry Division where he remained for the duration of his tour of duty in Vietnam.

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 of regimental size or smaller during such time as the unit is engaged in active ground combat, and must have actively participated in such ground combat.

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.

Although the applicant may have served as an infantryman while in Vietnam he was assigned to an Aviation Battalion and as such did not meet one of the basic qualification requirements for award of the Combat Infantryman Badge.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 27 March 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 27 March 1973.

The application is dated 3 May 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 looked at the applicant's entire file.  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

__RVO__     HOF    _  __ENA__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001057602	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	22010726	
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.