MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            20 June 2000                  
	DOCKET NUMBER:   AR1999026723

	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. Carl W. S. Chun		Director	
	Mr. Leland A. Edwards		Analyst	

  The following members, a quorum, were present:

	Mr. Van B. Cunningham		Chairperson	
	Mr. James E. Anderholm		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:  That his WD AGO Form 53-55, Enlisted Record and Report of Separation – Honorable Discharge, be corrected to show that his military occupational specialty (MOS) and number was Rifleman, 0745, vice clerk typist, 0405.  In support of his application, he provides a copy of his WD AGO Form 53-55.

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 lost or destroyed in the National Personnel Records Center fire of 1973.

The applicant’s WD AGO Form 53-55 indicates:  that he served in the Army of the United States from 27 December 1944 to 28 July 1946; that he rose to the rank of Technician 5th Grade (TEC 5, equivalent to a Private First Class, E-3) in the Adjutant General Department; that he departed the United States on 28 May 1945 and arrived in the Philippine Islands on 27 June 1945; that he departed the Philippine Islands on 1 November 1945 and returned to the United States on 29 November 1945.

Multiple entries on the applicant’s WD AGO Form 53-55 support the conclusion that the applicant was not an infantryman (rifleman), but a clerk typist (in the Adjutant General Department).  In the absence of evidence to the contrary, the applicant’s WD AGO Form 53-55 is presumed to be correct.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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.  The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB.  In complying with this decision, the Board has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.  The Board will continue to excuse any failure to timely file when it finds it would be in the interest of justice to do so.

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 28 July 1946, the date the applicant authenticated his WD AGO Form 53-55.  The time for the applicant to file a request for correction of any error or injustice expired on 28 July 1949.

The application is dated 6 April 1999 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

__vbc___  __jea____  __ewl___  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR1999026723	
SUFFIX		
RECON		
DATE BOARDED	20000620	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	100.0500	
2.	110.0000	
3.		
4.		
5.		
6.