MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 
	
	BOARD DATE:            24 October 2000                  
	DOCKET NUMBER:   AR2000038001

	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	
	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret Patterson		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. John T. Meixell		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, an increase in retirement pay from that of pay grade E-7 to pay grade E-8.  The applicant states that there was a difference in First Sergeant, Master Sergeant and Sergeant First Class rank at the time of his retirement.  The applicant also states that he was to have received a battle field commission 

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:

On 13 January 1956 he reenlisted in the Regular Army for a period of 3 years, in the rank of Master Sergeant/E-7, with a date of rank of 27 February 1945.  

Effective 1 June 1958 the applicant’s rank was converted to Sergeant First Class/E-7, with a date of rank of 27 February 1945.  

The applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), indicates that on 31 August 1958, he retired with           20 years, 3 months and 21 days of creditable service, in his previous rank of Master Sergeant/E-7, with a date of rank of 27 February 1945.  

Prior to 1 June 1958, those individuals in the grade/rank of Master Sergeant were in the pay grade of E-7, currently those soldiers in the grade/rank of Master Sergeant are in the pay grade of E-8.  At the time of the applicant’s retirement he was in the pay grade of E-7.  

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 31 August 1958, the date of his retirement.  The time for the applicant to file a request for correction of any error or injustice expired on 21 August 1961.

The application is dated 13 March 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

___mp___  ___esc__  ___jtm__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000039375	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001024	
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.  142.0		
2.		
3.		
4.		
5.		
6.