MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             21 September 2000                  
	DOCKET NUMBER:    AR2000036820

	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. W. E. Schnupp.		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Eric N. Andersen		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 rank of sergeant first class (pay grade E-6) be restored to him because he was singled out to be court-martialed by a summary court.

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 enlisted in the Regular Army on 27 April 1948 with prior active service in the US Coast Guard.  Through a series of reenlistments, he remained on active duty until his retirement for length of service on 28 February 1967 in the grade of staff sergeant (pay grade E-6).

On 27 August 1953 the applicant consented to a trial by summary court-martial for two violations of the Uniform Code of Military Justice (UCMJ): Article 92 (failure to obey a lawful order not to gamble with trainees), and violation of Article 134 (gambling with subordinates).  He plead not guilty to charge I and guilty to charge II.  He was found guilty of both charges and sentenced to be reduced to the grade of sergeant (pay grade E-5) and to forfeit $50.00.

The Record of Trial by Summary Court-Martial contains a list of witnesses in the proceedings but no summary of the testimony given.

On 29 January 1957 he appeared before a special court-martial charged with one specification of violation of the UCMJ, Article 121 (wrongful appropriation of US government property in the amount of $1.96).  He plead not guilty to the charge but was found guilty and sentenced to forfeit $75.00 for one month and to be reprimanded.

The Uniform Services Pay Act of 1958 added pay grades E-8 and E-9 to the enlisted structure.  Concurrent with the new pay grades the enlisted grades and ranks were realigned and the grades of sergeant first class (E-6) and master sergeant (E-7) were deleted.  These grades were replaced with sergeant first class (E-7) and master sergeant (E-8) respectfully.

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 February 1967, the date of retirement.     .  The time for the applicant to file a request for correction of any error or injustice expired on 28 February 1970.

The application is dated 28 January 2000 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

__jhl ____  ___clg __  ___ena __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000036820	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000921	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC)	
REVIEW AUTHORITY		
ISSUES         1.  129.05		
2.		
3.		
4.		
5.		
6.