MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 October 2000                   
	DOCKET NUMBER:   AR2000044588

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. 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, that his records be corrected to show he separated as a Staff Sergeant.  He states that his rank was reduced because he was 2 hours late returning from a pass prior to his discharge.  Counsel contends that the applicant’s submission, in conjunction with the official Army records, amply advance his contentions.  He provides a 9-page letter from an officer who served in his unit and a company roster which shows his rank as Staff Sergeant as supporting evidence.

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 were lost or destroyed in the National Personnel Records Center fire in 1973.  

The applicant entered the Army on 28 January 1943.  He was separated on      30 November 1945 in the rank of Private.

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed before 26 October 1961 or within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board when 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 30 November 1945, the date the applicant separated.  However, in view of the fact that the Board was not established until 2 January 1947 the applicant’s 3 year period in which to file an application for correction of military records expired on 2 January 1950, 3 years from the date the Board was established.

The application is dated 5 June 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

__mkp___  __esc___  __jtm___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000044588	
SUFFIX		
RECON		
DATE BOARDED	20001024	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	133.00	
2.		
3.		
4.		
5.		
6.