MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            14 August 2001
	DOCKET NUMBER:   AR2000049697

	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. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Ronald E. Blakely		Member	
	Mr. Joe R. Schroeder		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:  In effect, correction of his military records to show that he was separated due to “Reduction In Force” or “Completed Service Obligation” from active duty on 31 December 1984.  The applicant has failed to provide a date of discovery for the alleged error or injustice.  In essence, he states he was told by the recruiter that after completing his military training his unit would not break up prior to the third year of his 4 year enlistment.  The recruiter told him he would be given the option to select where he would be assigned for the last year.  He further states that after he completed his military training, he was assigned to a short unit (Light Artillery Unit) which did split up.  He claims that his contract was thereby breached.  He further claims he was given three options: to reenlist, to complete his current enlistment or to separate because of a unfulfilled enlistment commitment with an honorable discharge (HD).  He elected separation.  The applicant now feels that because his unit was split up, in actuality this should be considered a reduction in force.  He points out that at the time of separation he did not think much about the narrative reason for separation because the character of service was honorable.  However, he claims in order to receive benefits from the State of Wisconsin, he is required to either have 2 years of service in peace time or that the reason for separation was due to a reduction in force.  The applicant submits no evidence in support of his request.

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 28 December 1983, the applicant enlisted in the Regular Army, for 4 years.  He then completed his basic combat training and began his advance individual training (AIT) at Fort Sill, Oklahoma.  On 5 April 1984, he was reassigned to Fort Ord, California, for completion of AIT.  On 2 October 1984, he was awarded military occupational specialty (MOS) 13B10 (Cannon Crewman). 

On 24 October 1984, he returned to Fort Bragg, North Carolina and was temporarily attached to the 19th Replacement Detachment.  The next day he was further assigned to A Battery 5/8th, Field Artillery Battalion at Fort Bragg for duty, in his MOS. 

The available military record does not contain the initial notification letter of circumstances surrounding the applicant’s separation.  However, the available records show that on 13 November 1984, his commander advised him that his enlistment contract under AR 601-210 Table 9-23 was breached.  He was then provided alternative options in accordance with (IAW) AR 635-200 paragraph 
7-16, defective or unfulfilled enlistment or reenlistment agreements. 

On 15 November 1984, the applicant consulted with legal counsel, and submitted a statement in his own behalf outlining his reason for requesting separation.  

On 29 November 1984, the applicant’s chain of command acknowledged his 
request to be separated under the provisions of paragraph 7-16(b), AR 635-200, 
for a unfulfilled enlistment contract and favorably endorsed his request for separation.

On 13 December 1984, the separation authority approved his request for separation.  On 31 December 1984, the applicant was separated with an HD, under the provisions of paragraph 7-16(b), Army Regulation 635-200, by reason of unfulfilled enlistment commitment.  He was credited with 1 year and 14 days of active service and no lost time.  The highest grade he attained was pay grade 
E-3.

Army Regulation 635-200, in effect at the time, sets forth the basic authority for the elimination of enlisted personnel.  Paragraph 7-16 of this regulation provided, in pertinent part, for the separation of individuals who incurs a Defective or Unfulfilled Enlistment or Reenlistment Agreement.  Paragraph 7-16(b) is applied when an unfulfilled enlistment commitment did not initially exists when the soldier received a written enlistment commitment from recruiting personnel for which the soldier was qualified, but which cannot be fulfilled by the Army and the soldier did not knowingly take part in the creation of the unfulfilled enlistment commitment.  Under this regulation, an HD was considered appropriate.

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 in 31 December 1984, the date he was discharged from active duty and signed his report of separation.  The time for the applicant to file a request for correction of any error or injustice expired 31 December 1987.

The application is dated 2 November 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.  Prior to reaching this determination the Board looked at the applicant’s entire file.  It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommended a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__WTM__  ___REB _  __JRS__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000049697	
SUFFIX		
RECON		
DATE BOARDED	20010814	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1984/12/31	
DISCHARGE AUTHORITY	AR 625-200, PARA 7-16 Defective or unfulfilled Enlistment or Reenlistment Agreement (Breached of Contract)	
DISCHARGE REASON	A110.02	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	A112.04	
2.		
3.		
4.		
5.		
6.