MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            4 August 1999                  
	DOCKET NUMBER:   AR1999020712

	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. Fred K. McCoy		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:  Correction of his military records to show on his DD Form 214 (Report of Separation from Active Duty) that he was released from active duty on 1 December 1975 in the rank of SP4 (specialist four E-4), not PFC (private first class E-3).  He states that he has just been able to request this correction.  He submits no documentation in support of his request.

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 enlisted in the Regular Army for 2 years on 10 December 1973, for military occupational specialty code (MOSC) 72B, communication center specialist.  He could not be trained in the 72B MOSC and was trained as a 13B, field artillery crewman.

He was advanced to private (E-2) on 10 April 1974.

On 6 June 1974 he received a special court-martial conviction for misconduct.  His sentence was reduction to private (E-1), forfeiture of pay of $200.00 for 
1 month, and restriction to Fort Gordon for 60 days.

He was re-advanced to private (E-2) on 6 October 1974.

He served in Germany from 16 October 1974 to 29 November 1975.  He was promoted to PFC while in Germany, effective 1 January 1975.

His separation orders were published on 1 December 1975, upon his return to Fort Dix, New Jersey from Germany, showing he was to be separated in the rank of PFC.

He was honorably separated from active duty on 1 December 1975 in the rank of PFC.  The reason for his separation was indicated by separation program designator (SPD) LBM, Insufficient Retainability (Economic Reasons).  He was transferred to the Reserve Control Group (Annual Training).

He was not promoted to SP4 while on active duty.

There is no record to show the applicant served in the active Reserve.

The applicant’s Reserve service records were not provided to the Correction Board, with the exception of an order published by the Reserve Components Personnel And Administration Center, St. Louis, Missouri, dated 21 November 1979.  The order honorably discharged the applicant from the Reserve Control Group (Annual Training) effective 9 December 1979, in the rank of SP4.

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 1 December 1975, the date of his separation from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 1 December 1978.

The application is dated 7 July 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

fkm_____  gdp_____  jhk______  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999020712	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999 August 4	
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.