APPLICANT REQUESTS:  That his time in service be corrected due to fraudulent separation from active duty; all back pay and benefits for the affected time period and a re-look on all promotion boards with the corrected time in service.  He states that he never requested release from active duty, on the contrary, he attempted to stay on active duty.

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 was born on 15 January 1952.  He enlisted in the Navy on 17 January 1972   for 4 years; served in the Navy Reserve until 27 December 1976; entered the Army Delayed Entry Program on 28 December 1976; enlisted in the Regular Army on 8 March 1977; and was honorably discharged on 7 July 1981.  His last two years he served as a recruiter.  He enlisted in the Active Army Reserve on   8 July 1981 for 3 years. 

On 4 October 1982, the applicant was accepted into the Active Guard/Reserve (AGR) Program.  He was to report to the Santa Ana District Recruiting Command 1 November 1982, with a 3 year active duty commitment, for the purpose of being an AGR/USAR Field Recruiter.  

On 2 March 1983, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice, for failing to obey a lawful order by making an unofficial private phone call from a government telephone.  His punishment was to forfeit $243.74 pay for one month, half of that suspended for 180 days.

On 1 September 1983, the applicant was promoted to Staff Sergeant, E-6.

On 19 October 1983, the applicant was terminated from recruiting duty.

On 27 November 1983, the applicant’s 3 year active duty commitment was changed to 1 year and 2 months.

On 30 December 1983, the applicant’s active duty commitment was changed once again to 1 year, 2 months and 16 days, ending date 16 January 1984.

On 16 January 1984, the applicant was relieved from full-time training duty (FTTD) in pay grade E-6, with a character of service as honorable, separation authority self-termination orders, reason for separation completion of period of FTTD.  The applicant did sign that DD Form 214.

On 4 November 1986, the applicant reenlisted in the Regular Army.  He retired on 30 April 1997, in pay grade E-6, after 20 years of creditable active federal service.

Army Regulation 135-18 prescribes the policy and procedures for the administration of the AGR Program.  Table 2-4F prescribes that a Staff Sergeant or above must possess the grade, military occupational specialty (MOS) and skill level required by the AGR duty position or, if a Sergeant or below, must possess the grade equal to, or below, that authorized for the AGR duty position and the MOS required for the AGR duty position.

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 16 January 1984, the date the applicant was relieved from full-time training duty.  The time for the applicant to file a request for correction of any error or injustice expired on 16 January 1987

The application is dated 25 June 1996.  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