MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  8 March 2001
	DOCKET NUMBER:  AR2000049149

	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:

	Mr. Roger Able		Chairperson	
	Ms. Barbara J. Lutz		Member	
	Mr. William D. Powers		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 entitled to full separation pay.  He states he was to receive full separation pay, then was put on orders after his ETS date to Korea and could not reenlist.  He felt this was done to avoid giving him what he was entitled to.  He provides a copy of his final DD Form 214 (Certificate or Release or Discharge form Active duty) and copies of 2 separation orders. 

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 march 1983, he enlisted in the Army.  He completed his required training and was awarded military occupational specialty 63W (Wheeled Vehicle Repairer).  He was promoted to pay grade E-5 effective 10 April 1986.

The applicant was advised he had been selected for an assignment to Korea.  He signed a DD Form 4991-R (Declination for Continued Service Statement (DCSS)).  The individual automatically incurred a bar to reenlistment.

On 15 February 1996, Order 046-0018, Fort Stewart, Georgia indicated he was entitled to full separation pay.  This order was revoked.

On 21 February 1996, Order 052-0015, Fort Stewart, indicated he was not entitled to separation pay.

On 1 June 1996, he was honorably discharged in pay grade E-5 under Army Regulation 635-200, based on his DCSS.  His separation document indicates he had 13 years, 2 months and 17 days of creditable service.  His separation code was JBK (A soldier ineligible for, bared from, or otherwise denied reenlistment who is separated on completion of enlistment).

Department of the Army Circular 635-92-1 (Personnel – Separation Pay) indicates, in pertinent part, that a “Soldier separated at or before ETS who signs a Declination of Continued Service Statement (DCSS)” is “not eligible for Separation Pay”.

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 1 June 1996, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 1 June 1999.

The application is dated 28 September 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

__ra____  ___bl____  __wp____ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000049149	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010308	
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         1.128	Separation Pay	
2.		
3.		
4.		
5.		
6.