MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 05 SEPTEMBER 2002
         DOCKET NUMBER: AR2002069855


         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:

Ms. Celia L. Adolphi		Chairperson
Mr. Melvin H. Meyer		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)

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APPLICANT REQUESTS: That item 25a (specialty number and title) on his 1969 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be "changed to read 13B40 Recon Sgt." He also requests award of the Combat Infantryman Badge. He states that he "was given the MOS [Military Occupational Specialty] 13B40" while serving with the 11^th Armored Cavalry. He notes that he served as an 13B40 and 11B40, "all Recon Sgt slots." He also notes that he was awarded the Combat Infantryman Badge while "attached to MACV over 30 days." He states he was awarded the Combat Infantryman Badge "for working in the slot of a [sic] 11B40 Infantry Recon Sgt and meeting the criteria of being under fire and being the aggressor toward a hostile force." He maintains that item 25a should be changed to "13B40 Recon Sergeant due [to] it was [his] job for over 2 years." In support of his request he submits his self-authored statement, and copies of orders awarding him the Bronze Star Medal with "V" device and Army Commendation Medal.

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 initially entered active duty on 19 September 1961 and was discharged for the purpose of immediate reenlistment on 29 November 1963. Following his reenlistment he was assigned to the 11^th Armored Cavalry, in Europe, effective
30 November 1963. His primary specialty at the time was 153.10 (Artillery Surveyor). While assigned to the 11^th Armored Cavalry, however, his "principal duty" was listed as "Rod and Tapeman." In June 1964 the 11^th Armored Cavalry was redesignated as the 3^rd Armored Cavalry. In October 1965 he was awarded a primary MOS of 13E40 (Ground Surveyor and Radar Mechanic) and assigned to a "principal duty" of "Recon Sgt."

In March 1966 the applicant departed Europe and was assigned to Fort Lewis, Washington. Although his primary MOS (13E) did not changed his "duty positions" included "Recon Sgt" and "Ground Surv & Radar Mech." He was briefly assigned duties as a "Squad Leader" in specialty 54C (Smoke Operations
Specialist) but he was never awarded that specialty.

In October 1966 the applicant was assigned to the 27^th Artillery in Vietnam. His primary MOS remained as 13E throughout the duration of his assignment in Vietnam, although his "duty positions" included "Recon Sgt" and "FDC [Fire Direction Computer]." On 29 August 1967 the applicant was promoted to pay grade E-6 in MOS 13E.

The applicant was awarded the Bronze Star Medal with "V" device for his heroic actions on 18 September 1967. His award order notes that he was "serving as forward observer, Headquarters, 5^th Battalion, 27^th Artillery," his unit of assignment, at the time of the action. The applicant was also wounded during that same action and awarded the Purple Heart.

In October 1967 the applicant was evacuated from Vietnam as a result of his combat wounds and ultimately discharged by reason of physical disability on
29 May 1969. His DD Form 214 indicates his "specialty number & title," at the time of his discharge, was "13E40 Ground Surv & Radar Mech." His separation document also does not reflect award of the Combat Infantryman Badge.

Army Regulation 611-201 contains a listing of MOS codes and titles. It also contains a listing of "duty positions" for each specialty, which may or may not be the MOS title. For example the title for MOS 13B is "Cannon Crewman" but within that specialty, duty positions could include Cannoneer, Security Guard, Assembler, Gunner, etc. The "duty position" title of "Recon Sgt" could apply to a variety of military specialties depending on the unit's authorization document.

Army Regulation 635-5, then in effect, stated that item 25a would reflect an individual's primary MOS code number and title. The applicant's primary MOS at the time of his separation was 13E40, and while he may have been assigned to a variety of "duty positions" while holding that specialty, there is no evidence or basis to change his separation document to show that he held any other specialty and no evidence to show that his primary MOS was 13B40.

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. There is no evidence the applicant was an infantryman, and while he may have performed infantry like duties and been awarded a decoration for valor and the Purple Heart, neither of those serve as a basis to award the Combat Infantryman Badge. The Board notes that all soldiers are provided basic combat skills training after they enter the Army. This is provided to insure that all soldiers have the survival skills to perform basic infantry missions when the need arises. The exigencies of combat may require non-infantry soldiers to temporarily perform the basic infantry duties that all soldiers are taught but it is not a basis for the award of the Combat Infantryman Badge.

By virtue of the applicant's assignment in Vietnam he is entitled to a Republic of Vietnam Gallantry Cross Unit Citation with Palm, which was omitted from his 1969 separation document.
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 29 May 1969, the date he was discharged and authenticated his separation document. The time for the applicant to file a request for correction of any error or injustice expired on 29 May 1972.

The application is dated 20 May 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 1969 separation document to reflect entitlement to the Republic of Vietnam Gallantry Cross Unit Citation with Palm.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

__CLA __ __MHM__ __JTM __ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2002069855
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020905
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.	110.00
3.
4.
5.
6.