MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:        2 December 1998      
	DOCKET NUMBER:   AC98-11463

	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. Gale Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. John H. Kern		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 the records of her late spouse, the former service member (FSM), be corrected by changing his grade to Technical Sergeant/5 (T/5).

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 FSM’s military records show:

On 8 February 1944, the FSM was inducted in to the Army.

The FSM was reported missing in action on 27 December 1944, while stationed in Belgium, it was later determined that he was a prisoner of war.  He was returned to military control on 11 May 1945.

On 15 October 1945, he was honorably discharged in the grade of private.

There is no evidence in the available records to substantiate the claim that his grade was listed incorrectly on his DD Form 214, there is no documentation to indicate he was ever promoted to a grade higher than private.

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 15 October 1945, the date of his discharge.  However, in view of the fact that the Board was not established until 2 January 1947 the 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 24 October 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

__RVO___  __GDP__  __JHK__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director