MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            5 August 1999                  
	DOCKET NUMBER:   AR1999016869

	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. David E. Weightman		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Ernest W. Lutz, Jr.		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 Record and Report of Separation and Certificate of Service (WD AGO Form 53-98) to show he was released from active duty in the rank of captain.  He states the rank of captain on his WD AGO Form 53-98 is in error and should reflect his rank as major.  He submits a copy of his WD AGO Form 53-98, dated 29 December 1945, a copy of his ID card (NME Form 2A (Res), dated 27 July 1950, and a copy of a certificate of appointment to major, dated 21 November 1952.

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 was born on 27 October 1920 and graduated from The Citadel 
ROTC, South Carolina in 1942.  He was appointed as a Reserve commissioned officer on 30 May 1942 and entered active duty on 10 June 1942.  He served overseas in the European-African-Middle Eastern theater from February 1943 to September 1945l, as a Supply Officer and an AAA (AW) Unit Commander.  He was promoted to captain on 17 August 1944.

He was honorably released from active duty on 29 December 1945 in the rank of captain.

On 22 October 1949 the applicant’s request for appointment as a major, Coast Artillery Corps, in the Officers’ Reserve Corps, was approved.  He was appointed on 20 March 1950 in the Inactive Reserve.

He requested and was issued an ID card, dated 27 July 1950 with the rank of major shown on the card.

On 21 November 1952 he was appointed as a Reserve commissioned officer in the Officers’ Reserve Corps, in the Army of the United States, in the rank of major.

The applicant was properly released from active duty on 29 December 1945, and his rank was properly shown as captain on his WD AGO Form 53-98, dated 
29 December 1945.

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 29 December 1945, the date the applicant was released 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 1 November 1998 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

mdm____  aao_____  ewl_____  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999016869	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999 August 5	
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.