MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:        24 November 1998      
	DOCKET NUMBER:   AC98-06496

	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. Celia L. Adolphi		Member	
	Mr. Robert W. Garrett		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 the grade of master sergeant vice technical sergeant.  In support of his request he submits a copy of a 1943 Form W-2 and what appears to be a January 1944 lettergram.  The applicant states he was promoted to master sergeant in November 1943 and was not aware of the error until he was discussing headstones with the superintendent at Arlington National Cemetery.

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 were apparently lost or destroyed during a fire at the National Personnel Records Center in 1973.  Information contained herein was reconstructed from alternative sources.

The applicant was inducted and entered active duty on 6 June 1941.  He served in the European Theater of Operations between April 1944 and October 1945 and was awarded a Bronze Star Medal in addition to participating in several designated campaign periods.

On 19 October 1945 he was honorably discharged from the Army as a result of demobilization.  His WD AGO Form 53-55 (report of separation), which he authenticated with his signature and thumb print indicate he was serving in the grade of technical sergeant at the time of his separation.  Item 38 (highest grade held) on his separation document also reflects technical sergeant.

The documents submitted in support of his request contain the designation “M/Sgt” in the address line but neither document indicates the source of the address information, nor is it supported by an official Army documentation.  The W-2 forms pertains to wages earned by the applicant’s spouse during calendar year 1943, not the applicant.  The applicant’s signature on his separation document attests to the authenticity of the information contained on the WD AGO Form 53-55 concerning his grade at the time of separation.

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 19 October 1945, the date he was discharged from active duty and signed his report of separation.  However, in view of the fact that the board was not established until 2 January 1947 the applicant’s 3 year period in which to file an application for correction of military records expired on 
2 January 1950; 3 years from the date the Board was established.

The application is dated 6 January 1998 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__  __CLA___  __RWG__  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.