MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:

		BOARD DATE:           1 February 2001                  
		DOCKET NUMBER:   AR2000045634

		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. G. E. Vandenberg		Analyst	

The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Barbara J. Lutz		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

		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:  Correction of his Certificate of Release or Discharge From Active Duty (DD Form 214) to include the three years and nine months he attended the Uniformed Services University of the Health Sciences (USUHS) as active not inactive service.

APPLICANT STATES:  That as he was ordered to active duty and received full active duty pay and allowances, this period of service should be credited as active duty.

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 19 July 1982 orders were issued for the applicant to report for active duty.  These orders were issued for the purpose of attendance in the USUHS, School of Medicine’s four-year medical doctors program.  The applicant was brought on active duty in the grade of second lieutenant.  The record shows that the applicant reported for duty on or about 29 July 1982 and continued in the program without interruption through graduation in May 1986. 

The Defense Officer Personnel Management Act (DOPMA) was enacted 12 December 1980 and became effective 15 September 1981.  Section 402 of DOPMA, repealed constructive credit authorized by 37 U.S.C. subsection 205(a)(7) and (8) which had authorized four years credit to medical officers for computation of their basic and retirement pay.  Section 625(b) of DOPMA preserved credit for persons who were enrolled in USUHS on or before 14 September 1981.

As a result of numerous complaints and concerns stemming from the question of proper notification to affected personnel this Board took action to rectify a perceived injustice.  On 6 November 1985 it rendered a decision that corrected the records of all USUHS Class of 1986 personnel to show that they had enrolled in USUHS on 14 September 1981.  This action granted service credit solely for the purpose of computing basic (longevity) pay.  A copy of this decision was sent to the applicant and incorporated in his official records at that time. 

Upon graduation in May of 1986, the applicant was commissioned a captain in the medical corps and served on active duty continuously until he submitted a voluntarily request for an unqualified resignation.  His resignation was accepted and he was released from active duty on 25 June 1996.  There is no indication that the applicant requested a consideration for crediting him retirement credit for his period of time as a medical student during his period on active duty.

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice.  Failure to file within three 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 1985, the date of the Board’s decision granting the applicant credit for longevity for pay purposes only for the period of time he was in medical school.  

Even accepting that the applicant may not have been aware of the limiting action of the Board’s 1985 decision during his period of active service, the alleged error or injustice was, or with reasonable diligence should have been discovered on 25 June 1996, the date of his release from service.

The application is dated 24 July 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 failed to present a sound reason for waiving the three-year statute of limitations and the Board’s consideration of the merits reveals there is no injustice, inequity, compelling circumstance, likelihood of relief, or potential for relief.  Accordingly, all relief is denied. 

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__LLS___  __JEA__  ___BJL __  DENY APPLICATION

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

INDEX

CASE ID	AR2000045634	
SUFFIX		
RECON		
DATE BOARDED	20010201	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	129.01	
2.		
3.		
4.		
5.		
6.