MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:           17 August 2000                   
	DOCKET NUMBER:   AR2000037360

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Ms. Sherri V. Ward		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Linda D. Simmons 		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:  In effect, that he be promoted to the rank of sergeant (E-5) effective with of his placement on the Temporary Disability Retired List (TDRL) on 6 November 1968.  He states that he would have been eligible for promotion with his unit in Vietnam in July 1968, but he was wounded in April 1968 and medically evacuated.  During his period of hospitalization, he never received his promotion.

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 was inducted into the Army of the United States for 2 years on 2 November 1966.  Following completion of all required military training, he was awarded military occupational specialty 12A (Field Artilleryman) and permanently assigned to Fort Sill, Oklahoma.  He was promoted to Private First Class (E-3) 20 April 1967.  In August 1967, he received assignment orders for Vietnam.

Arriving in Vietnam as a Private First Class on/about 19 September 1967, the applicant was assigned to A Battery, 2/9 Artillery, 4th Infantry Division.  He was promoted to Specialist (E-4) on a temporary basis on 21 January 1968.  On 7 April 1968 in the vicinity of Kontum, Republic of Vietnam, the applicant was participating in a direct fire support mission when he was wounded in the left arm and chest by shrapnel from enemy mortar fire.  He was medically evacuated from Vietnam to Japan and then to Walter Reed Army Medical Center (WRAMC), Washington, D.C. for treatment.

During the medical evacuation process, the applicant's losing unit (4th Infantry Division) recommended that he be promoted; however, that unit did not promote him.  His eventual gaining unit (Medical Holding Detachment, WRAMC) did not promote him; there are no promotion orders in his file.  While at WRAMC, the applicant underwent medical evaluation processing, was honorably discharged on 6 November 1968, and placed on the TDRL the following day.  On 30 September 1971, he was removed from the TDRL and permanently retired with a 60 percent disability rating on 1 October 1971.  His rank remained Specialist (E-4).

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 6 November 1968, the date of separation.  The time for the applicant to file a request for correction of any error or injustice expired on 6 November 1971.

The application is dated 20 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

__svw___  __mhm__  __lds___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000037360	
SUFFIX		
RECON		
DATE BOARDED	20000817	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	131.0000	
2.		
3.		
4.		
5.		
6.