MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            1 February 2001   
	DOCKET NUMBER:   AR2000041732

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Ms. Barbara J. Lutz		Member	
	Mr. James E. Anderholm		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 reflect that he was separated in the grade of sergeant vice private (E-2).  He states, in effect, that he retired in the grade of sergeant but most of his documents reflect private (E-2).  In support of his request he submits a copy of his 1945 WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge).

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 an initial period of active duty between July 1940 and September 1945 and was separated in the grade of sergeant.

On 15 August 1949 the applicant returned to active duty in the grade of sergeant. However, on 27 April 1951 he was reduced to the grade of private (E-1) as a result of conviction by a special court-martial for being absent without leave (AWOL) between 16 October 1950 and 10 April 1951.  He was promoted to the grade of private (E-2) in August 1951 and on 31 December 1951 was honorably discharged as a result of disability.  His DD Form 214 (Report of Separation from the Armed Forces of the United States) indicates that his grade at separation was private (E-2).

Army Regulation 635-5, which establishes the policies and provisions for the preparation and distribution of separation documents states that the active duty grade or rank and pay grade at the time of separation will be entered on the DD Form 214.

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 December 1951, the date the applicant was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 31 December 1954.

The application is dated 26 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

__lls___  ___bjl__  __jea___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000041732	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010201	
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.	142.00	
2.		
3.		
4.		
5.		
6.