MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           18 JULY 2002                   
	DOCKET NUMBER:   AR2002071040

	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. Raymond V. O’Connor		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John P. Infante		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 Expert Infantryman Badge.  He states, in effect, that it was his understanding that if a soldier worked outside his primary specialty for more than 90 days he was to be awarded the specialty he was working in.  He notes, in a self-authored statement, that he was trained as a clerk, but never worked in that specialty.  He states that when he was assigned to Vietnam he worked as a truck driver, forklift operator and in construction work. He notes that after 90 days he requested that his specialty be changed, but his request was denied.  He notes that he subsequently worked for a "full 6 months in the infantry" and learned to use various weapons, was involved in patrols and was ultimately assigned to an infantry unit when he returned to the United States. He believes he is entitled to the Expert Infantryman Badge.  The applicant also asks if he was entitled to the Army Service Ribbon, which was established in 1981.  Other than his self-authored statement, the applicant submits no additional 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 entered active duty on 5 July 1968 and was trained as a clerk and awarded specialty 70A (clerk) in December 1968.  In February 1969, following completion of training, the applicant was assigned to Vietnam.

The applicant was initially assigned to the 179th Aviation Company where his records indicate his principal duty was as a light vehicle driver, although his duty specialty was still recorded as 70A (clerk).  In August 1969 he was reassigned to the 52nd Security Detachment where he was assigned duties as a riflemen in specialty 11B (infantryman).  On 19 November 1969 the applicant was awarded a primary specialty of 11B (light weapons infantryman).  Orders issued by the 52nd Aviation Battalion confirmed the award.

The applicant returned to the United States in February 1970.  Just prior to his departure from Vietnam, he was awarded an Army Commendation Medal for meritorious achievement during the period "18 July 1969 to 14 January 1970."  The award, however, was omitted from his DD Form 214 (Armed Forces of the Untied States Report of Transfer or Discharge).

The applicant completed his period of active military service at Fort Benning, Georgia and on 10 July 1970 was released from active duty.

Army Regulation 600-8-22 states, in pertinent part, that the Expert Infantryman Badge may be awarded to personnel in CMF (Career Management Field) 11 (infantry) after completion of a prescribed program and passing a proficiency test. There is no automatic entitlement to the badge merely by holding or performing duties in an infantry specialty.  There is no evidence the applicant completed the prescribed program and passed the proficiency test for award of the Expert Infantryman Badge.

Army Regulation 600-8-22 also states that the Army Service Ribbon, established in April 1981, may only be retroactively awarded to soldiers who had an active Army status on or after 1 August 1981.  The applicant did not have an active Army status on or after 1 August 1981 and as such would not be entitled to an award of the Army Service Ribbon.

However, by virtue of the applicant's service in Vietnam he is entitled to two awards of the Republic of Vietnam Gallantry Cross Unit Citation with Palm (one based on his assigned with the 179th Aviation Company and one based on his assignment with the 52nd Security Detachment), and four bronze service stars on his Vietnam Service Medal, vice the two currently reflected on his separation document.  The bronze service stars denote participation in four designated campaign periods while in Vietnam (Vietnam Counteroffensive-Phase VI, Tet 69 Counteroffensive-1969, Vietnam Summer-Fall 1969 and Vietnam Winter-Spring 1970).

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 10 July 1970, the date the applicant was released from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 10 July 1973.

The application is dated 17 March 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 Army Commendation Medal, two awards of the Republic of Vietnam Gallantry Cross Unit Citation with Palm, and four bronze service stars on his Vietnam Service Medal.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__RVO__  __SK____  __JPI___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002071040	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020718	
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.	107.00	
2.		
3.		
4.		
5.		
6.