MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            10 March 1999                  
	DOCKET NUMBER:    AC98-05219
			               AR1999016512

	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:  Correction of his military records to show he was promoted to captain before he left active duty on 23 December 1945 for terminal leave.  He states his commander intended to promote him but in the confusion of demobilization did not see it through.  He also states that while this was important to him at the time he did not pursue it, and now he wants the record straight for his grandson.

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 pertinent military records in this case were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from reconstructed personnel records, and information submitted by the applicant.

He was born on 20 May 1915 in Portland, Oregon and enlisted in the service on 20 July 1942.  He later attended officer candidate school and was appointed while overseas as a second lieutenant, Corps of Engineers, effective 
28 September 1943. 

He was promoted to first lieutenant on 16 September 1944.

He was transferred to Australia on 18 February 1943 and served in the Asiatic Pacific, returning to the Fort Lewis, Washington separation center on 
15 December 1945.  He proceeded on terminal leave to Portland, Oregon on 
24 December 1945, and having been found not medically incapacitated for general service, he was relieved from active duty based on demobilization on 
6 March 1946.

His awards included the Asiatic Pacific Service Medal with 3 Bronze Stars and 
1 Arrowhead, the Philippine Liberation Medal with 1 Bronze Star, and the WWII Victory Medal.

On a radio address on 22 April 1945, General MacArthur commended all officers and men involved in the Visayan Campaign.  General Eichelberger, Eighth Army Commander, also commended the officers and men for the same campaign.  The commander of the Americal Division indorsed the commendations to the applicant by letter dated 31 May 1945.

While serving in a Reserve capacity he was required to perform Inactive Duty Training.  On 30 December 1952 he was advised by Sixth Army Headquarters officials that he was discharged from the Officers’ Reserve Corps for his inability to participate in the Evaluation Program of 1951.

The applicant has submitted his recollection of his efficiency ratings.

There is no record of a promotion recommendation.

On 29 September 1986, his request for combat awards was denied by the Reserve Personnel Center.

The applicant served honorably while on active duty and the nation is indebted to him for his distinguished service.

The presumption of regularity applies in this case.  The records are presumed correct and the burden is on the applicant to show otherwise.

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 6 March 1946, the date the applicant was relieved from active duty.  Since the Correction Board was established on 
2 January 1947, the time for the applicant to file a request for correction of any error or injustice expired on 2 January 1950.

The application is dated 18 April 1996 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

JHL_____  MW_____  KLW____  DENY

		Loren G. Harrell
		Director

INDEX

CASE ID	AC98-05219  AR1999016512	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999 MARCH 10	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.