MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          20 January 1999     
	DOCKET NUMBER:   AC98-08469
				   AR1999016699

	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:

	Ms. June Hajjar		Chairperson	
	Mr. Robert W. Garrett		Member	
	Ms. Deborah S. Jacob		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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show his rank as Private E-2 instead of Private E-1, with the restoration of all rights, privileges, and property.

He states that he was promoted, even through his records were under suspension of favorable personnel actions (flagged), because, in effect, the promotion directive was published prior to the receipt of the flagging action [which would have stopped that promotion]. 

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 entered the Army on 6 September 1989 and in January 1990 was assigned to Fort Stewart, Georgia.  On 21 February 1990 the applicant was flagged for his failure to meet the Army weight standards.  He was notified on that date by his company commander that he had been flagged.

On 6 March 1990 a computer generated personnel action advanced the applicant to the grade of Private E-2.

He was flagged again on 24 July 1990 for failing the physical training test, and flagged again on 15 July 1991 because of pending elimination action.

On 21 August 1991 the applicant’s commanding officer recommended that the applicant be separated from the Army because of his failure to meet weight control standards.  That recommendation was approved on 6 September 1991.

A 26 August 1991 personnel qualification record shows his rank as Private E-1, with a date of rank of 6 September 1989, the date he entered the Army. 

The applicant was discharged on 24 September 1991 in the grade of Private E-1. He had 2 years and 19 days of service.

Army Regulation 600-200, then in effect, prescribes policies and procedures for the promotion of enlisted personnel.  Paragraph 7-6 of that regulation states, in pertinent part, that soldiers are nonpromotable and will not be advanced or promoted to a higher grade when a DA Form 268 (Report for Suspension of Favorable Personnel Actions) has been prepared.

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 24 September 1991, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 24 September 1994.

The application is dated 30 January 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

__jh_____  ___rwg___  ___dsj__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.