MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:  24 May 2000
	DOCKET NUMBER:   AR2000035179

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. John M. Slone		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Mark D. Manning		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 records be corrected to show that he was promoted to pay grade E-8 between 1967 to 1970 vice 1 January 1976.  He alleges adverse documentation on another person by the same name was in his file, causing him not to be promoted when he thinks he should have been.  He provides copies of military documents (Enlisted Efficiency Reports, letters of appreciation/commendation/recommendation, his promotion order to E-8, and his DD Form 214, Certificate of Release or Discharge From Active Duty, dated 30 April 1979).

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:

He served 27 years, 2 months and 7 days of active service and 8 years and 27 days of inactive service.

On 22 July 1976, he reenlisted, in pay grade E-8 and MOS 76Z50 (Senior Supply Sergeant).  

On 30 April 1979, he was honorably discharged and placed on the Retired List the following day, 1 May 1979, in the rank of master sergeant, E-8.  His DD Form 214 indicates he had 27 years, 2 months and 7 days of creditable service.

There is no evidence in the available records to support the applicant’s claim that an error or injustice occurred over his promotion to E-8.  The applicant has failed to provide any evidence in support of his claim that another person’s derogatory information was misfiled in his records.

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 30 April 1979, the date he was separated from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 30 April 1982.

The application is dated 17 December 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

___JS___  ___MW___  __MM____ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000035179	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000524	
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	Retroactive promotion to E-8	
2.		
3.		
4.		
5.		
6.