MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                              
	DOCKET NUMBER: 

	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	
			Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		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 essence, that he be awarded length of service retirement pay effective 23 November 1954.  He states that he served on active duty from 23 November 1932 to 23 November 1954; that he attained the rank of technical sergeant; and that he “always thought my retirement [pay] would arrive next month.  Before I knew it 39 years had passed.”

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:

On 26 September July 1942 a board of (Medical Corps) officers convened at the Station Hospital, Camp Rucker, Alabama to determine if the applicant should be discharged from the service by reason of traits of character which might render his services to the Army undesirable.  The Board Proceedings show that the applicant was admitted to that hospital on 17 August 1942 “with a condition diagnosed by the Ward Officer as “Psychosis, alcoholic, manifested by depression with suicidal attempt and deterioration of personality and conduct.”  On 21 October 1942 the board of officers recommended that the applicant “be discharged without honor from the service, and that he be accompanied by two attendants.”  

A Final Statement, War Department Form NO 370, shows that the applicant was accepted for enlistment at Fort Douglas, Utah on 6 December 1937 and was discharged at Camp Rucker, Alabama on 22 December 1942.  The reason for discharge is shown as “Disch (Not Hon) per Sec VIII, AR 615-360 (Habits & Traits of Char Undes in Mil Serv) & 2d Ind Hq 81st Inf Div dated Nov. 16, 1942.”  The document also shows that the applicant was AWOL from 18 to 22 July and from 25 July to 17 August 1942, and that he had 381 days time lost.  His signature on the form reflects that he received the amount of $342.05 in cash at that time.

VA Form 07-3101, Request for Information, dated 19 September 1969 (prior to the fire at the National Personnel Records Center), with the type of claim shown as “Original Disability Pension” shows the applicant’s service from 1937 to 
1939 and from 1940 to 1943.  A subsequent VA Form 07-3101, dated 
10 November 1969, with the type of claim shown as “Supp[lemental] Disab[ility]” cited the aforementioned Board Proceedings and Final Statement and corrected his separation date.  There are no documents in the available records, nor has the applicant provided documents which would indicate that he was awarded service connection by that agency for an injury or illness that was incurred during the alleged period of service.
(On 10 October 1995 the applicant wrote to the Chief, Records Reconstruction Branch, National Personnel Records Center, contending that the aforementioned documents did not pertain to him but rather belonged to another individual with the same name.  He provided no documents then, or now, such as copies of separation documents, orders or medical documents, which would indicate that he served on active duty from 23 November 1932 to 23 November 1954 as he contends).

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 23 November 1954, the date he contends that he was retired by reason of length of service.  The time for the applicant to file a request for correction of any error or injustice expired on 23 November 1957.

The application is dated 19 June 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

________  ________  ________  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AC98-08663	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19430000	
DISCHARGE AUTHORITY	AR 615-380 	
DISCHARGE REASON	Undes characteristics	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	142.00	
2.	136.01	
3.		
4.		
5.		
6.