MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           11 DECEMBER 2001
	DOCKET NUMBER:   AR2001061522

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Ronald E. Blakely		Member	
	Mr. Thomas E. O’Shaughnessy, 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:  In effect, award of the Combat Infantryman Badge (CIB).

The applicant states that he was assigned as a radio/telephone operator in an infantry company on 18 October 1967, and should have been awarded an infantry MOS (military occupational specialty) of 11B20, making him eligible for award of the CIB.  Instead, he was awarded MOS 31B20.   

The applicant states that there was no such MOS as 31B20 and either someone made a typographical error or typed in a nonexistent MOS.  He stated that he was assigned to a rifle company as the company commander’s radio/telephone operator.  The applicant discussed his situation with his former executive officer during a 28th Infantry Regiment reunion in May 2001.  At that same reunion the former Army Chief of Staff asked the applicant’s former executive officer to support his request.  

The applicant provides a 13 August 2001 supporting statement from his former executive officer, now a retired colonel, who states that the applicant’s duty MOS was 11B20, and although a request was made to award the applicant the MOS, it was not acted upon.  That individual states that the applicant should be awarded the CIB.    

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 entered on active duty on 25 July 1966 and after attending language school at the Presidio of Monterey for six months, was assigned to Fort Gordon, Georgia for training as a field radio repairman, MOS 31E20.  

On 14 October 1967 the applicant was assigned to Company A, 2nd Battalion, 28th Infantry, a 1st Infantry Division unit in Vietnam, as a radio mechanic.  His MOS as shown on his DA Form 20 (Enlisted Qualification Record) was 31B20.  

On 15 November 1967 the applicant was assigned to Headquarters Company in that same battalion as a clerk-typist, MOS 71B20.  On 18 December 1967 the applicant was assigned as a senior radio mechanic, MOS 31B20, in that company, and on 1 June 1968 as a personnel specialist, MOS 71H20, with that company.

The applicant returned to the United States and in November 1968 was assigned to Fort Riley, Kansas as a personnel specialist.  He was released from active duty on 24 July 1970.  The applicant’s DD Form 214 does not show award of the CIB. 

Orders published by the 1st Infantry Division on 10 November 1967 show that the applicant, then holding MOS 31E20, was assigned from Company A,                2nd Battalion, 28th Infantry, to Headquarters Company of that battalion for duty in MOS 71B30.

Orders published by the 2nd Battalion, 28th Infantry, show that the applicant was promoted to Specialist Four on 15 December 1967 in MOS 31B20.

Orders published by the 1st Infantry Division on 18 December 1967 awarded the applicant a primary MOS of 31B20, a secondary MOS of 31E20, and withdrew MOS 31E20 as his primary MOS.

Orders published by the 1st Infantry Division on 16 June 1968 awarded the applicant a primary MOS of 71H20, a secondary MOS of 31B20, and an additional MOS of 31E20.  The applicant was promoted to specialist five on        1 June 1968 in MOS 71H20.

There are basically three requirements for award of the CIB.  The soldier must be an infantryman satisfactorily performing infantry duties, must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and must actively participate in such ground combat.  Campaign or battle credit alone is not sufficient for award of the CIB. 

Although the exigencies of combat may require non-infantry soldiers to temporarily perform the basic infantry duties that all soldiers are taught, it is not a basis for the 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.

There is no evidence, nor has the applicant provided any, to indicate that the applicant was an infantryman performing infantry duties with a unit engaged in active ground combat and actively participating in such combat, and as such there is no basis correct his record to show award of the Combat Infantryman Badge.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 24 July 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 24 July 1973.

The application is dated 7 August 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 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.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__KAK __  __REB__  __TEO __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001061522	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011211	
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.	107.00	
3.	157	
4.		
5.		
6.