MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  15 February 2001
	DOCKET NUMBER:  AR2000049572

	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. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Margaret K. Patterson		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 his promotion to pay grade E-8.  He provides copies of Enlisted Evaluation Reports, Letters of Appreciation, a DD Form 214 (Report of Separation from Active Duty), dated    31 July 1977, a certificate for the Bronze Star Medal, the Meritorious Service Medal, and the Air Medal, all of which have been previously documented in his Official Military Personnel File (OMPF).  He also provides a copy of a Commander’s Award for Civilian Service and an Achievement Medal for Civilian Service, which will be made a matter of record.

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 31 August 1973, the applicant reenlisted in the Army with 16 years, 1 month and 7 days of prior active service, in military occupational specialty 94B (Cook).  He was promoted to pay grade E-7 effective 27 April 1971.

On 14 July 1976, he was notified by the Commander, Military Personnel Center (MILPERCEN) that his request for deletion from a levy to Korea based on a medical condition of his daughter had been denied.  He was advised that he could request retirement as an exception to policy.

On 26 July 1976, he requested retirement as an exception to policy.

On 9 August 1976, the Commander, MILPERCEN approved his request for retirement.

On 31 July 1977, he was honorably separated in pay grade E-7 under Army Regulation 635-200, chapter 12, based on length of service and placed on the retired list the following day, 1 August 1977.  His separation document indicates he had 20 years and 8 days of creditable service.

There is no evidence in his OMPF that he had been recommended for or promoted to pay grade E-8.

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 July 1977, the date the applicant was separated from active duty for length of service.  The time for the applicant to file a request for correction of any error or injustice expired on 31 July 1980.

The application is dated 25 October 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

__fe___  ___mm___  ___mp___ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000049572	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010215	
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. 131	E-8	
2.		
3.		
4.		
5.		
6.