MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           07 MAY 2002                   
	DOCKET NUMBER:   AR2002070262

	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. Samuel A. Crumpler		Chairperson	
	Mr. Kenneth W. Lapin		Member	
	Mr. John T. Meixell		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 that he performed duties as a radio operator with the 101st Airborne Division between May and July 1967.  He notes that he routinely went on patrol with elements of the 101st and that he was directly involved with infantry units, even though his military specialty did not reflect this.  As such, the applicant contends he should be awarded the Combat Infantryman Badge.  Other than his self-authored statement, 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:

He served on active duty between 20 September 1965 and 4 October 1968 and was assigned to Vietnam between January and December 1967.  According to information contained in item 38 (record of assignments) on his DA Form 20 (enlisted qualification record), the applicant performed duties as a personnel management specialist (71H) throughout his tour of duty in Vietnam.  There is no evidence he ever performed duties as a radio operator while in Vietnam.

Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer personnel who have an infantry specialty.  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 Combat Infantryman Badge was awarded only to enlisted individuals who held and served in specialty 11B, 11C, 11F, 11G, or 11H.  

However, MACV Directive 672-1, then in effect, considered those individuals who served in duties positions as Radio/Telephone Operators (if the primary duty was to accompany infantry or infantry-type units on tactical operations) as having served in infantry positions for the purpose of entitlement to the Combat Infantryman Badge.

There is, however, no evidence, and the applicant has not provided any, that he served as a Radio/Telephone Operator, who accompanied an infantry or infantry-type unit on tactical operations, while in Vietnam and as such does not meet the eligibility criteria for award of the Combat Infantryman Badge.

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.

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

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 4 October 1968, 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 4 October 1971.

The application is dated 1 October 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.

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

__SAC__  __KWL_ _  __JTM __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002070262	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020507	
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.