MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 March 2000
	DOCKET NUMBER:   AR1999027956

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. James P. Steuve		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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:  Reconsideration of his previous request to correct his records by showing, in effect, that he was granted Federal Recognition as a National Guard Officer In 1954, that he was promoted regularly and ultimately retired as a colonel.

APPLICANT STATES:  In a sworn affidavit the applicant contends that his company commander deliberately withheld his application for appointment until it was too late to be processed before he was too old.  Subsequently he withheld information that would have permitted him to get a waiver.

COUNSEL CONTENDS:  Counsel repeats the applicants assertions.  He  contends that the applicant was unable to obtain copies from his service record until 1992 and that therefore he could not learn of the concealment of the possibility of a waiver.  Counsel argues that National Guard Regulation (NGR) 20-3 provided that the applicant should have been granted a waiver of overage equal to the time he spent on active duty during World War II.  He further asserts that this concealment constitutes fraud and that therefore the statute of limitations was not tolled.  They submit copies of documents from the applicant’s service record and a copy of NGR regulation 20-3 dated 15 November 1962.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to 
reflect the Board's original consideration of his case on 17 August 1994 (COPY ATTACHED).
 
The submissions amount to new evidence and argument that requires Board consideration.   

The copies of documents from the applicant’s service record include:

A certificate of completion for the 10 series correspondence  courses dated 26 March 1954. 

An application for Federal recognition of a National Guard officer.  The 
8 June 1954 document is from the applicant through the state Adjutant General to the Chief, National Guard Bureau.  Endorsements from and to the state Adjutant General dated 22 and 23 June 1954, respectively, indicated that the examining board recommended that the application be approved and that an 18 day waiver of the over old-age condition,  because it had been “impossible to hold a Board prior to his 28th birthday as the unit did not recommend him in time.”

The applicant’s earlier statement to this Board reads in pertinent part:
  
I applied for the 10 series education in November 1952, required for a commission.  I completed the 10 series and received my certificate of completion in March 1954.  I took the certificate of completion to the unit administration aid, command office and applied for my commission.  I was told I would get a letter from the National Guard Headquarters in Des Moines on when to appear before the selection board.

I did not receive any information in March or April of 1954.  I started inquiring as to the whereabouts of the paperwork.  The unit headquarters said they had sent the paperwork to Battalion Headquarters.  The paperwork was found in late May at the company and sent to Battalion Headquarters, then on to National Guard Headquarters. I received notice to appear at [state] National Guard Headquarters for the Board of Officers in June 1954.  I passed the tests and was commissioned again.  In July of 1954 I was informed the commission was withdrawn because I was over 28 years of age by 16 days.  I again asked for a waiver but it was refused.

After returning from summer camp in late 1956, I contacted Congressman H.R. Gross.  I informed him of what happened.  Congressman Gross contacted the National Guard Bureau in October 1956”

The response to the August 1956 congressional inquiry indicated the Adjutant General of the Iowa National Guard had reported that there had been no recent contact with the applicant.  There was not then a suitable vacancy and proceeding on the basis of a two-year-old application seemed impracticable.  The applicant was free to contact the Adjutant General directly.

There is no indication in the file that the applicant pursued the matter with the state Adjutant General.

The copy of NGR 20-3 that was submitted is entitled COMMISSIONED OFFICERS PROMOTION.  It applies only to the promotion of officers not to initial appointments.    

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The assertions contained in the current affidavit are so different from the applicant’s statement submitted with the 1992 application as to lack creditability.  They are also unsubstantiated.  There is no corroborating evidence that there was either an intentional interference in the application process or even any undue delay in processing the applicant’s application (it was dated 8 June 1954 and a statewide board acted on it 15 days later.)  Neither is there any evidence that the applicant was entitled to an extension or exception to the age limit or that any evidence that any information was hidden or withheld from the applicant after his Federal recognition was withdrawn nor that he tried to get his records.

2.  However, the above items are all moot.  Quite aside from the fact that is insufficient evidence that an error occurred or that an injustice exists, no relief is appropriate in this more than 40 year old situation that the applicant apparently droped in 1956 even thought the state Adjutant General indicated that he was available to the applicant.

3.   Prior to reaching the determination that it was not in the interest of justice to excuse the failure to timely file, the Board looked at the entire file.  It was only after all other aspects had been considered and it had been concluded that there was no basis to recommend a correction of the records that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit the application within the 3-year time limit.  Prior to reaching this determination the Board looked at your entire file.  Although the decisional document may not clearly state that the Board considered the merits of the case, it does show that the facts and governing regulation were available for consideration.  The Board does not normally deny a request simply because the application was not submitted within 3 years.

4.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__JPS __  ___MDM_  __RGH__  DENY APPLICATION

Karl F. Schneider
   Director, Army Review Board Agency

	AR1999027956	
		
RECON		
DATE BOARDED	20000329	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	102.00	
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