MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            9 January 2001    
	DOCKET NUMBER:   AR2000045932

	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. Mark D. Manning		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Eric N. Andersen		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 reflect that he was promoted to Staff Sergeant.  He states that he was recommended for promotion by his platoon sergeant “in the field of battle in September 1944.”  In what appears to be an undated self-authored narrative the applicant indicated that he was recommended for promotion “around September 1944 while in the field” and that “all others got promoted except [him].”  He notes that he “certainly felt like [he] earned the recommended promotion” but wonders “if being Mexican American had anything to do with it.”  In support of his request he submits an undated note from another individual who claims to have been “present with [the] company commander” when the applicant was recommended “to become squad leader at the rank of S/Sgt.”

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 likely lost or destroyed during the 1973 fire at the National Personnel Records Center.  Information contained herein was reconstructed from alternative sources, including information provided by the applicant.

The applicant entered active duty on 20 January 1943 and served overseas between May 1944 and November 1945.  He was honorably discharged in the grade of PFC (Private First Class) on 13 December 1945 as a result of demobilization.  His WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge), which he authenticated with his signature and thumb print, indicate that PFC was the highest grade the applicant held during his military service.

The applicant’s final payment voucher also indicates his final pay was made in the grade of PFC.

During the applicant’s period of military service enlisted grades ran from the lowest (grade 7 – private) to the highest (grade 1 – Master Sergeant & First Sergeant).  A PFC served at grade 6 while a Staff Sergeant served at grade 3.

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 13 December 1945, the date he was discharged from active duty and signed his report of separation.  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 6 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

___mdm__  __clg___  ___ena__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000045932	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010109	
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.