MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           11 OCTOBER 2001                   
	DOCKET NUMBER:   AR2001059937

	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:

	Ms. Joann Langston		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. Jose A. Martinez		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.  He states he served as a combat soldier with an infantry unit while in Vietnam but his records do not reflect award of the Combat Infantryman Badge.  He notes that his records reflect other combat decorations and the Combat Infantryman Badge should also be reflected.  He states he needs proof of his combat service in order to obtain benefits from the VA.

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 between 1968 and 1983.  He served two tours of duty in Vietnam (May 1969 - April 1970 and June 1970 - January 1971).  His records indicate that during his two tours of duty in Vietnam he performed duties in his primary specialty (76Y -armorer/unit supply specialist).  He was an armorer in the 7th Battalion, 9th Artillery and an assistant supply sergeant in the 3rd Battalion, 21st Infantry.

In September 1977 he was awarded a secondary specialty of 11B (infantryman).

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 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.

The applicant was performing duties in the supply area during his two tours of duty in Vietnam and as such was not eligible for the Combat Infantryman Badge.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered in 1983, the year he was discharged from active duty.  The time for the applicant to file a request for correction of any error or injustice expired in 1986.

The application is dated 6 July 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

__JL____  __MDM__  __JAM__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001059937	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011011	
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.