MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:

	BOARD DATE:  5 December 2000
	DOCKET NUMBER:  AR2000041114

	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:

	Ms. Ann M. Campbell		Chairperson	
	Mr. Jose A. Martinez		Member	
	Mr. Allen L. Raub		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 he was promoted to pay grade E-6.  He requests the enclosed documents be reviewed for possible error and that he wants to know if his records ever went before the E-6 board.  He provides copies of a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 11 May 1983; 90th US Army Reserve command Orders 12-36, dated 9 March 1990, which assigns him to the Army Reserve Control Group (Reinforcement); Army Reserve Personnel Center DARP-PAT-E442 Orders C-08-227918, dated 4 August 1992, which assigns him to the Retired Reserve, effective 31 August 1992; and an amendment to Total Army Personnel Command Orders A-07-016128, dated       9 July 1991.  Additionally, he provides a partial copy of an NCO Evaluation Report for the period August through November 1991; a letter to the Secretary of Defense, dated 27 November 1998 with a cover letter to “IG c/o SFC Perkins” and a letter to PERSCOM (sic), dated 9 June 1999.  Further, he provides copies of DD Form’s 214 dated 15 October 1975 and 7 January 1992.  He also provides National Guard Bureau Forms 22 dated 16 October 1981, 1 May 1978 and       14 June 1982.

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 15 June 1962, the applicant enlisted in the Army.  He completed his required training and was awarded military occupational specialty 723 (Communications Center Specialist).  He was promoted to pay grade E-5, effective 10 May 1967 and reduced to pay grade E-4, for misconduct, effective 23 April 1968.

On 15 October 1975, he was honorably discharged under Army Regulation 600-200, chapter 5, based on qualitative management – retention ineligibility point.  His separation document indicates he had 13 years, 4 months and 1 day of creditable service.  

Army Regulation 600-200 (Enlisted Personnel Management System) chapter 4 (Qualitative Management), in effect at that time, indicates in pertinent part, that the retention ineligibility point is the point the current enlistment will not exceed, i.e., a soldier in pay grade E-4 will not exceed 10 years service except for that time an enlistment exceeds that point.

During the period 16 October 1975 to 30 June 1976; 2 to 19 May 1978; and      15 June 1982 to 13 February 1986, he had no military affiliation.

During the period 1 July 1976 to 1 May 1978, 20 May 1982 to 14 June 1983 he served in the Army National Guard (ARNG), attaining 2 years of qualifying service for retirement.

During the period 20 May 1978 to 19 May 1982, he served in the Air National Guard (ANG), attaining 3 years of qualifying service for retirement.

During the period 14 February 1986 to 13 February 1989, he served in the USAR, attaining 3 years qualifying service for retirement.  On 3 March 1988, he was advanced to pay grade E-5.

On 9 March 1990, he was assigned to the USAR Control Group (Reinforcement).

During the period 14 July 1991 to 7 January 1992, he was active duty in support of Desert Shield.

On 31 August 1992, he was assigned to the Retired Reserve, in pay grade E-5.

The Board notes there is no record of a recommendation for or promotion orders to pay grade E-6.

In the absence of evidence to the contrary, a presumption of regularity applies that the records of the individual concerned are correct.

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 1992, the date he was reassigned to the Retired Reserve.  The time for the applicant to file a request for correction of any error or injustice expired on 31 August 1995.

The application is dated 15 April 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

__ac___  ___jm_____  __ar______ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000041114	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001205	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.131	Promotion to E-6	
2.		
3.		
4.		
5.		
6.