MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:         30 November 1998     
	DOCKET NUMBER:   AC97-08844
				    AR1998013709

	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. Loren G. Harrell		Director	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Sherri V. Ward		Member	
	Mr. Van B. Cunningham		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 his military records be corrected to reflect that he was separated in pay grade E-3 and that he be paid appropriate back pay with interest.  He states, in effect, that he was an E-3 when separated from the service and not an E-2.  As such, he notes, in effect, that he was not properly paid.  He also indicates that he may be entitled to awards that were not reflected on his separation document although he does not state which awards.

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 enlisted in the California Army National Guard on 19 December 1972, in pay grade E-1, for a period of 6 years.  On 19 April 1973 he was advanced to pay grade E-2.  Between June 1973 and December 1973 he was on active duty for the purpose of completing basic and advanced individual training.  

In December 1974 the applicant was involuntarily ordered to active duty for a period of 17 months and 13 days as a result of unsatisfactory participation.  He was scheduled to report for active duty on 13 January 1975 but failed to report as directed and was placed in an AWOL status.  He was dropped from the rolls of the Army on 11 February 1975.  Ultimately his status as a deserter was nullified when his AWOL status was cleared.

The applicant’s DA Form 2 (part 1, of the Personnel Qualification Record) contains an entry reflecting that the applicant was promoted to pay grade E-3 on 26 September 1975.  However, that entry was lined out and corrected to show that applicant’s original promotion date (19 April 1973) to pay grade E-2.  There are no documents, which confirm that the applicant was ever promoted to pay grade E-3 or that the lined out entry on his DA Form 2 was ever correct.

In June 1975 and May 1976 the applicant was punished under Article 15 of the UCMJ for failing to go to his appointed place of duty.  At the time of both incidents his rank was recorded as E-2 and his punishment included a suspended reduction to pay grade E-1.  (Note:  Had he been promoted to pay grade E-3 and subsequently reduced, his dank of rank as an E-2 would have been different than the original E-2 promotion date, which tends to indicate he was never promoted to E-3.)

On 25 June 1976 the applicant was released from active duty.  His separation document indicates he was released in pay grade E-2 with the original 19 April 1973 date of rank.  His separation document indicates he was entitled to the National Defense Service Medal and a Rifle Sharpshooter Badge.  There is no evidence he was entitled to any other awards.

Army Regulation 635-5, which establishes the policies and procedures for the preparation and distribution of the DD Form 214, indicates that an individual’s grade at the time of separation will be reflected in item 6a (grade).  There is no evidence, and the applicant has not provided any, which confirms he was serving in a higher grade at the time he was released from active duty.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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 25 June 1976, the date he 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 
25 June 1979.

The application is dated 13 May 1997 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

___GDP__  __SVW__  _VBC___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.