MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:           10 February 1999                   
	DOCKET NUMBER:   AC98-12742
				    AR1999014553

	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. Patrick Bogenberger		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Gary F. Garaets		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, that item 5 (branch of service at separation) on his Report of Separation be corrected to reflect his various assignments during his military service.  He also notes that he should have been separated in the grade of “T4” and that his lost time was “rescinded.”

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 partially destroyed during the 1973 fire at the National Personnel Records Center.  However, remaining records indicate:

The applicant entered active duty on 7 March 1941.  It appears he had several medical problems which were evaluated by various medical boards but consistently returned to duty until a final board, which convened in late 1943, found him medical disqualified for continued service and directed that he be discharged with a certificate of disability.

On 30 January 1944 the applicant was honorably discharged in the grade of Private First Class.  His separation document notes in item 5 (branch of service at separation) that he was assigned to Headquarters, Staging Area “C.P.E” located in Charleston, South Carolina at the time he was honorably discharged from active duty.  His WD AGO Form 53 (report of separation) does not reflect any lost time although his “record of enlistment” indicates that he was AWOL from 19 April 1943 until 26 April 1943.

The applicant’s records indicate he was initially assigned to Battery B, 1st Battalion, 1st Training Division at Fort Bragg, North Carolina in March 1941 and in June 1941 was transferred to Battery B, 43rd Field Artillery Battalion.  In May 1942 he was assigned to the 330th Harbor Craft Company in Charleston, South Carolina.

His records confirm that he was AWOL from 19 April 1943 through 26 April 1943 and that charges were preferred.  In consonant with his plea, the applicant was found guilty of the AWOL charge by a summary court-martial on 5 May 1943.  His sentence included reduction to private, forfeiture of $33.33 and restriction to the “limits of his post for three months.”  On 7 May 1943 the convening 

authority, a brigadier general, disapproved the findings and sentence of the court-martial.  There is, however, no indication the AWOL period was “rescinded.”  He was merely not convicted of the charge by court-martial.

In October 1943, at about the same time that the applicant began a series of hospitalizations, he was assigned to Headquarters, Staging Area “CPE” in Charleston.  Because of his medical conditions (tuberculosis, phlebitis, and anal fissures) he was ultimately transferred to a VA facility in Sunmount, New York where he was released from active duty.

There is no evidence in available records that the applicant was ever promoted to “T4” (technician fourth grade).

Army Regulation 635-5 establishes the standardized policy for preparing and distributing separation documents.  In pertinent part, it directs that the unit a soldier was assigned to at the time of separation will be reflected on the report of separation.  There are no provisions for capturing all the units an individual may have been assigned to while in the Army on the separation document as that information is available in other documents which make up a soldier’s official military personnel file.

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 30 January 1944, 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 4 November 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

___pg____  __eja___  __gfg___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AC98-12742/AR1999014553	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990210	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1. 110.00		
2. 142.00		
3.		
4.		
5.		
6.