MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           13 SEPTEMBER 2001
	DOCKET NUMBER:   AR2001058006

	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. Fred N. Eichorn		Chairperson	
	Mr. John E. Denning		Member	
	Mr. Terry L. Placek		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 military records be corrected to reflect award of the Combat Medical Badge and a Presidential Unit Citation.  He states, in effect, that he was in combat with the 227th Assault Helicopter Battalion, 1st Cavalry Division.  He submits no evidence in support of his request although he does state that this is his second request to correct his records.

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 was a member of the U.S. Army Reserve when he enlisted in the Regular Army and entered active duty on 24 April 1961.  He was initially assigned to duties as a medical corpsman in Europe.

In June 1964 he was assigned to Madigan General Hospital for the purpose of attending the Medical Specialist Advance Course.  He successfully completed his training and in June 1965 was assigned to Headquarters and Headquarters Company, 227th Assault Helicopter Battalion, 11th Air Assault Division at Fort Benning, Georgia.  In July 1965 the Battalion was redesignated as the 227th Aviation Battalion and assigned to the 1st Cavalry Division (Airmobile).

On 17 September 1965 the applicant, as part of a unit move, arrived in Vietnam.  Twenty days later, on 6 October 1965, the applicant was authorized emergency leave commencing on 7 October 1965.  He did not return to Vietnam and ultimately was honorably discharged on 30 December 1965 as a result of the expiration of his term of service (ETS).

Army Regulation 600-8-22 states that medical personnel, assigned or attached by appropriate orders to an infantry unit of brigade, regimental, or smaller size, or to a medical unit of company or smaller size, organic to an infantry unit of brigade or smaller size, during any period the infantry unit is engaged in actual ground combat, are eligible for award of the Combat Medical Badge, provided they are personally present and under fire during such ground combat.  The applicant was assigned to an aviation unit, not an infantry unit, and there is no evidence he was personally present and under fire during any ground combat.

Army Regulation 600-8-22 establishes the requirements for award of the National Defense Service Medal (honorable active service between 1 January 1961 and 
14 August 1974).

A review of Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) notes the applicant’s unit (227th Aviation Battalion) was awarded a Presidential Unit Citation for actions during the period 23 October 1965 through 26 November 1965.  The applicant was not present in the unit when the Presidential Unit Citation was awarded and as such is not entitled to the award.  His unit was, however, awarded a Meritorious Unit Commendation and the Republic of Vietnam Gallantry Cross Unit Citation with Palm during the period he was assigned and he is entitled to those awards.

There is no indication in available records, or in organizational files of the Board, that the applicant submitted a previous request to have his records corrected.

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 30 December 1965, 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 30 December 1968.

The application is dated 11 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.

NOTE:  The Army Review Board Agency Support Division in St. Louis should correct the applicant’s record to reflect entitlement to the National Defense Service Medal, Meritorious Unit Commendation, and the Republic of Vietnam Gallantry Cross Unit Citation with Palm.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__FNE __  __JED __  __TLP __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001058006	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010913	
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.