MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 28 OCTOBER 2003
         DOCKET NUMBER: AR2003087036


         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 J. Wagner		Chairperson
Ms. Linda D. Simmons		Member
Ms. Marla J. N. Troup		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: Award of the Combat Infantryman Badge. He states, in effect, that it is unjust not to have all of his medals, certificates, and unit citations that he is entitled to. He also notes that he needs his separation document updated to include award of the Combat Infantryman Badge for a Department of Veterans Affairs (VA) claim. In support of his request he submits a copy of an e-mail statement from an individual who indicated he was the applicant’s commander while in Vietnam.

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 31 July 1964 and was trained as an infantryman (11B).

He was initially assigned to duties as a rifleman and gunner at Fort Hood, Texas and on 26 May 1965 arrived for duty in Vietnam.

The applicant’s records indicate that upon his arrival in Vietnam he was assigned to the United States Military Assistance Command as a “security guard” with a duty specialty of 11B.

An 18 December 1965 Department of the Army Form 3054 (Election of Amount, Beneficiary Designation and Settlement Options for Servicemen’s Group Life Insurance) notes the applicant’s address as “Advisory Team 96.”

Orders issued by the United States Military Assistance Command, Vietnam on
8 March 1966 reassigning the applicant to the United States with an estimated departure date of 25 May 1966, indicates that the applicant was assigned to IV Corps Advisory Group, United States Military Assistance Command, Kien Tuong, Vietnam, at the time the orders were published.

The applicant departed Vietnam on 20 May 1966 and was assigned to Fort Riley, Kansas for the duration of his enlistment contract. There is no indication that he was ever recommended for, or award, the Combat Infantryman Badge prior to his departure from Vietnam.

On 28 July 1967 the applicant was released from active duty with an honorable characterization of service. Neither his Department of Defense Form 214 (Armed



Forces of the Untied States Report of Transfer or Discharge), nor his Department of the Army Form 20 (Enlisted Qualification Record) reflect entitlement to the Combat Infantryman Badge. The applicant authenticated his Department of the Army Form 20 on 24 March 1967 and his separation document on the day he was released from active duty.

The statement submitted via e-mail in support of the applicant’s request for award of the Combat Infantryman Badge notes that the author of the e-mail was the commander of Special Forces Detachment 41 in Moc Hoa, Kien Toung, Vietnam, and that the applicant “was assigned for the purpose of providing security for the compound.” He stated that the applicant “also participated on several combat missions” and that he “requested orders awarding him the Combat Infantry Badge.”

Army Regulation 600-8-22 (Military Awards) notes that there are basically three requirements for award of the Combat Infantryman Badge. 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 participated in such ground combat. It states that in 1961 and 1965 Headquarters Department of the Army messages to the senior Army commander in the Southeast Asia theater of operations authorized award of the Combat Infantryman Badge to otherwise qualified personnel “provided they are personally present and under fire.” The regulation went on to note that subsequent to
1 March 1961 Soldiers assigned as advisor to an infantry unit, ranger unit, infantry-type unit of the civil guard or self defense corps, or assigned as advisors of an irregular force during such time as the unit was engaged in actual ground combat, or if personally present and under fire while serving in an assigned primary duty as a member of a tactical advisory team while the unit participated in ground combat, were also eligible for award of the Combat Infantryman Badge.

A review of Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) notes the applicant’s unit (United States Army Military Assistance Command) was credited with participating in two designated campaigns (Vietnam Defense Campaign and Vietnam Counteroffensive) during the applicant’s period of assignment. His campaign credit, which should be reflected by two bronze service stars on the Vietnam Service Medal which is reflected on his separation document, were omitted. The applicant’s unit was also awarded a Meritorious Unit Commendation, and the Republic of Vietnam Gallantry Cross Unit Citation with Palm, during his tenure with the organization.



The applicant’s records also show that he was awarded the Army Good Conduct Medal prior to his release from active duty in 1967. Orders published by Headquarters, Fort Riley confirmed the award. The award, however, was omitted from his 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.

The evidence available to the Board indicates that the applicant was a security guard assigned to the United States Military Assistance Command while in Vietnam. Although the applicant’s former commander states that he requested that the applicant be awarded the Combat Infantryman Badge, there is insufficient evidence that the applicant met the basic requirements for award of the Combat Infantryman Badge during the Vietnam era.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 28 July 1967, 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
28 July 1970.

The application is dated 14 February 2003 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 award of the Army Good Conduct Medal, the Republic of Vietnam Gallantry Cross Unit Citation with Palm, and two bronze service stars on his Vietnam Service Medal.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

__RJW__ __LDS __ __MJNT _ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2003087036
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031028
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.