MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:        18 November 1998      
	DOCKET NUMBER:   AC98-11568

	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	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Ms. June Hajjar		Member	
	Mr. Thomas D. Howard, Jr.		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 effect, retirement with the rank and grade of Colonel, pay grade 0-6, effective 1 August 1985.

In a 12 September 1997 letter to the Secretary of the Army the applicant states that two members of congress (MC), in politically motivated decisions, adversely affected his career and retirement.  He states that in mid-1985 family considerations compelled his request for voluntary retirement.  An order was published retiring him in the pay grade of 0-6 but withdrawn and he was retired in pay grade 0-5 because he completed only 21 months of the 36 months in grade [as an 06] as of his 1 August 1985 retirement date.

He states that at that point a MC, who was formerly a state governor, who had  an influence in another case, impacted his retirement.  He requested a waiver of his remaining time in grade and cited the retirement waiver granted to one of his West Point classmates, so he could take a key civilian job with the state of Florida.  He was informed by DA that the information that he had concerning his classmate was incorrect, and that to grant him (the applicant) a waiver would set a bad precedent.  He accepted that decision and decided to retire.  He states that he was misled with respect to the information provided by DA concerning his classmate, and was the victim of a gross injustice, comparing the percentage of time he spent as an 06 versus that of his classmate, and implying that his classmate received a waiver to get a high-paid political appointed civilian job from his high school friend, then the governor of Florida.  He states that unlike his classmate, who served only 12 months in Vietnam, he served 57 months there, tried to return to active duty, and was ready to complete 30 years more of service.  Had he the opportunity for battalion command that was denied him by the cover up involving a relative of a MC, his promotion would have occurred sooner, and he would not have had to request a waiver. 

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:

The applicant graduated from West Point in 1961, was an infantry officer, and served in various locations throughout the world, including nearly five years in Vietnam.  He was promoted to Colonel on 1 November 1983, and was separated from the Army on 31 July 1985 and transferred to the retired list the next day with the retired rank of Lieutenant Colonel.  The applicant had over 24 years of service and received numerous awards and citations, to include two awards of the Legion of Merit, two awards of the Bronze Star Medal, the Defense Meritorious Service Medal, two awards of the Meritorious Service Medal, two awards of the Air Medal, two awards of the Joint Service Commendation Medal, the Army Commendation Medal, the Vietnam Service Medal (11 campaigns), the Presidential Unit Citation, the Combat Infantryman Badge, and the Ranger Tab, among others.

A 2 May 1984 decision by this Board (COPY ATTACHED) denied the applicant’s request to invalidate an officer evaluation report, retroactively promote him to Colonel and adjust his date of rank with back pay and allowances, select him for attendance at the 1984 senior service college and afford him consideration by the colonel command selection board.

Title 10 U.S. Code, section 1370 states in effect, that in order to be eligible for voluntary retirement in a grade above major a commissioned officer must have served on active duty in that grade for not less than three years, except that the Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than two years in the case of retirements effective during the nine-year period beginning on October 1, 1990.  The President may waive the requirement in individual cases involving extreme hardship or exceptional or unusual circumstances.  An officer whose length of service in the highest grade he held while on active duty does not meet the service in grade requirements specified above shall be retired in the next lower grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months.

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 31 July 1985, the date of his separation from the active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 31 July 1988.

The application is dated 23 September 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

____JEV_  __JH____  ___TDH__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director