MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           3 May 2000                   
	DOCKET NUMBER:   AR1999031558

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Ernest W. Lutz, 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 he be awarded the Air Medal and that his       DD Form 214 be corrected to show that he served in MOS 35K20.

The applicant states that he served in MOS 35K20 from October 1969 through May 1970, while in Vietnam.  To support his contention that he was awarded the Air Medal, he submits a copy of a 28 October 1969 report of a class III flight physical examination.  

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:

The applicant enlisted in the Army for 3 years on 28 September 1967, completed training at Fort Dix, New Jersey, and Fort Gordon, Georgia, and in May 1968 was assigned to a signal detachment at Fort Hood, Texas as an Aviation Communication Equipment Repairman, MOS 35L20.  In April 1969 he was assigned to the 605th Transportation Company in Vietnam.  His duty MOS shown on his Enlisted Qualification Record (DA Form 20) to the date of his departure from Vietnam in May 1970 was 35L20.  He was released from active duty on       5 May 1970 in the grade of E-5 at Oakland, California.  He had 2 years,               7 months, and 8 days of service.  His MOS shown on his DD Form 214 is shown as 35L20.  Neither his DD Form 214 nor his DA Form 20 shows award of the Air Medal, or award or duty in any MOS other than 35L20.  There is no order in the applicant’s record to show that he was awarded the Air Medal.  

Army Regulation 600-8-22 provides, in pertinent part, that the Air Medal 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. 

U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) implements the provisions of the Army regulation then in effect and states, in pertinent part, that a crewmember is an individual on flying status performing duties in flight which are essential to the operation of the aircraft.  It goes on to provide, in pertinent part, a description of the types of air missions, to include Category I missions.  A Category I mission is one performed in an assault role in which a hostile force is engaged and is characterized by delivery of ordnance against this hostile force, or delivery of friendly troops or supplies into the immediate combat operations area.  Types of Category I missions include delivery of supplies into the assault area and visual reconnaissance immediately preceding a combat assault.

As with all awards, formal recommendation and approval in the chain of command are required.  The award must be announced or published in general or permanent orders.
  
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 May 1970, the date of his release from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 5 May 1973.

The application is dated 20 September 1999 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.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___ewl__  ___rvo___  ___jhk___  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999031558	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000503	
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.  64	142.00	
2.	107.00	
3.	100.05	
4.		
5.		
6.