MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           16 MAY 2002                   
	DOCKET NUMBER:   AR2002068613

	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. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Roger W. Able		Member	
	Ms. Paula Mokulis		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 by showing he was awarded the combat infantryman badge (CIB).  The applicant states he served in a combat unit in Vietnam that was engaged with the enemy.  The applicant 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:

On 16 January 1970, he enlisted in the Regular Army for a period of 3 years.  He completed basic training at Fort Dix, New Jersey and advanced individual training at Fort Eustis, Virginia.  

The applicant’s DA Form 20 (Enlisted Qualification Record) indicates he was awarded the military occupational specialty (MOS) 68H (Aircraft Hydraulic Repairman) on 13 July 1970, and that his duty MOS was 68H during his tour in Vietnam from 11 November 1970 to 10 November 1971.  

There is no evidence in the available records to show the applicant served in an infantry unit while stationed in Vietnam.  The only document in the applicant’s records during his time in Vietnam is an Article 15, for sleeping on post, which shows his organization of assignment as the 610th Transportation Company. 

By virtue of the applicant’s service in Vietnam he is entitled to the Republic of Vietnam Gallantry Cross Unit Citation with Palm.

Army Regulation 600-8-22 provides, in pertinent part, that the Combat Infantryman Badge 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, Total Army Personnel Command has advised, in similar cases, that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11F, 11G, or 11H.  There is no evidence in the applicant’s record to show he held or served in either of the MOS’s listed above.  

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 24 March 1972, the date the applicant was separated from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 24 March 1975.

The application is dated 9 January 2002 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:  Officials at the ARBA Support Division in St. Louis are requested to administratively correct the applicant’s separation document to reflect award of, the Republic of Vietnam Gallantry Cross Unit Citation with Palm

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__FNE __  _RWA___  __PM ___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002068613	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020516	
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.