MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            04 FEBRUARY 2003                 
	DOCKET NUMBER:   AR2002076389

	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. Melvin H. Meyer		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Ronald J. Weaver		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, that pay and allowances which were withheld from him during his period of confinement, between February and July 1966, be paid to him.  He also requests award of the Combat Infantryman Badge. The applicant states that he did not receive any pay while in confinement and recently received copies of his court-martial orders, which he contends, were ignored.  He submits a self-authored statement and a copy of his court-martial order 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 was inducted and entered active duty on 10 February 1964.  He successfully completed training as an infantryman (11B).  

In September 1965 the applicant was reassigned to Vietnam as part of a unit move from Fort Riley, Kansas with the 16th Infantry.

In January 1966 the applicant was convicted by a special court-martial of willfully disobeying an order.  His punishment included confinement at hard labor for 6 months and forfeiture of $67.00 per month for 6 months.  On 30 January 1966 the amount of his forfeiture was reduced from $67.00 per month for six months to $62.00 per month for six months.  The applicant's finance records were not available to the Board and the applicant has not provided any evidence that he was entitled to any pay and allowances while in confinement or that if so entitled that he did not receive it.  The Board believes, that it is possible the sentence was amended when it was discovered that his total pay was only $62.00 per month and not $67.00.

Although the applicant's records indicate that he remained in Vietnam until 
5 March 1966, his separation document indicates that he was only credited with 3 months and 10 days of service in Vietnam.  His remaining service in Vietnam, until his March 1966 transfer, would have been spent in confinement.

Between September 1965 and January 1966, the applicant would have been credited with participation in two designated campaign periods (Vietnam Defense Campaign and Vietnam Counteroffensive).  He would also have been entitled to the Republic of Vietnam Gallantry Cross Unit Citation with Palm and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, which were 

awarded to his unit while he was a member, and prior to his placement in confinement.  Although his separation document reflects entitlement to the Vietnam Service Medal, his campaign credit and unit awards were omitted.

On 15 August 1966 the applicant was released from active duty with an honorable characterization of service at the conclusion of his service contract.  The applicant authenticated his separation document.

There are basically three requirements for award of the Combat Infantryman Badge.  The soldier must be an infantryman (11 series specialty), assigned to an infantry unit during such time as the unit is engaged in active ground combat, and must have actively participated in such ground combat.  Campaign or battle credit alone is not sufficient for award of the Combat Infantryman Badge.  There is no evidence the applicant was awarded the Combat Infantryman Badge.  The applicant has not provided any evidence which confirms that he engaged in active ground combat during his less than 4 months of creditable service in Vietnam and as such there is insufficient evidence on which to base an 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.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 15 August 1966, 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 15 August 1969.

The application is dated 22 June 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 Army Review Boards Agency Support Division in St. Louis are requested to administratively correct the applicant’s separation document to reflect entitled to the Republic of Vietnam Gallantry Cross Unit Citation with Palm, the Republic of Vietnam Cross of Gallantry First Class Unit Citation and two bronze service stars on his Vietnam Service Medal.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__MHM__  __CLG__  __RJW__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002076389	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030204	
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.	128.00	
3.		
4.		
5.		
6.