MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:             23 October 2001                 
	DOCKET NUMBER:    AR2001061516

	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:

	Ms. Shirley Powell		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Thomas E. O'Shaugnessy, Jr.		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 his entitlement to award of the Combat Infantryman Badge (CIB) and the Air Medal (AM) for service in Vietnam.  He indicates he spent most of his second tour as a radio operator on the Forward Observer Team, in the 9th Infantry Division.  Further, he indicates that until recently he thought one must have a certain MOS (military occupational specialty) to qualify for the CIB and thought he might be deserving consideration.

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 6 February 1967, he enlisted in the Army.  He completed his required training and was awarded MOS 36K (Field Wireman).

During the period 27 June 1967 through 22 June 1968 and 26 February 1969 through 14 August 1969, he served in Vietnam, in MOS 36K.

On 5 February 1970, he was honorably separated from active duty under Army Regulation 635-200, chapter 4, based on the expiration of his term of service.  His separation document indicates he had 3 years of creditable service.

There is no evidence that the applicant was qualified or recommended for award of the CIB or the AM.

Army Regulation 600-8-22 provides, in pertinent part, that the CIB is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry MOS.  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  The Awards Branch of the Total Army Personnel Command has advised, in similar cases, that during the Vietnam era the CIB was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11F, 11G, or 11H.

Army Regulation 600-8-22 provides, in pertinent part, that the AM is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  This award is primarily intended for personnel on flying status, but may also be awarded to those personnel whose combat duties require them to fly, for example personnel in the attack elements of units involved in air-land assaults against an armed enemy.  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 5 February 1970, 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 5 February 1973.

The application is dated 31 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:

_alp____  _teo____  _slo____     EXCUSE FAILURE TO TIMELY FILE

________  ________  ________ GRANT FORMAL HEARING

________  ________  ________ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001061516	
SUFFIX		
RECON		
DATE BOARDED	20011023	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	107.0111	
2.		
3.		
4.		
5.		
6.