MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            25 October 2001                 
	DOCKET NUMBER:    AR2001060877

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Ronald E. Blakely		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 show that an award of the Army Commendation Medal (ARCOM) was upgraded to the Silver Star (SS).  He contends that he and another soldier were the only ones that participated in the firefight at Firebase Alpha I and Alpha II located at the DMZ in Vietnam.  He contends the remainder of his squad was either sleeping or drunk when he and another solder fought off attacking enemy soldiers.  He did not mention this to his commander because it would get the other soldiers in trouble. He alleges his squad leader was awarded the SS and the rest of the squad, the lesser medal of heroism, the ARCOM. 

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:

On 24 August 1969, he enlisted in the Army.

During the period 14 January to 3 December 1970, he served in a unit in Vietnam.

On 3 October 1970, XXIV Corps General Orders Number 1143 announced his award of the ARCOM for meritorious achievement for the period 30 June to      26 August 1970.

On 28 November 1970, XXIV Corps General Orders Number 1384 announced his award of the ARCOM for meritorious achievement for the period January 1970 to January 1971.

On 18 March 1972, he was honorably separated under Army Regulation 635-200, based on being an overseas returnee.  His separation document indicates he had 2 years, 6 months and 25 days of creditable service. He was entitled to award of the ARCOM with 1 oak leaf cluster, the Good Conduct Medal, the National Defense Service Medal, the Vietnam Service Medal with 3 bronze service stars, the Vietnam Campaign Medal, and the Republic of Vietnam Gallantry Cross with Unit Citation Badge.

Army Regulation 600-8-22 (Military Awards) provides that the Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after              6 December 1941, distinguished himself or herself by heroism, meritorious achievement or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

Army Regulation 600-8-22 provides, in pertinent part, that the Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

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 18 March 1972, the date he was separated from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 18 March 1975.

The application is dated 22 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 the 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 the application within the three-year time limit.  

BOARD VOTE:

________  ________  ________ EXCUSE FAILURE TO TIMELY FILE

________  ________  ________ GRANT FORMAL HEARING

_kan____  _reb____  _rjw____    CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001060877	
SUFFIX		
RECON		
DATE BOARDED	20011025	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	107.0007	
2.		
3.		
4.		
5.		
6.