MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           10 April 2001                  
	DOCKET NUMBER:   AR2001051549

	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:

	Ms. Sherri V. Ward		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. James E. Anderholm		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 that he was promoted to the rank of master sergeant, pay grade E-8, retroactive to 1976, with all pay and allowances.  His name appeared on the master sergeant promotion list in the Army Times.  He also requests that after promotion to master sergeant he be considered for promotion to sergeant major E-9.  He indicates that his records were flagged pending UCMJ (Uniform code of Military Justice) action and completion of an investigation.  The investigation was dropped because the charges were unsubstantiated.  Further, he indicates he was never court-martialed, never fined, and never received a letter of reprimand, but was discriminated against based on being a minority soldier.  Counsel was silent on the issues.

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 available military records show:

On 10 April 1975, he reenlisted in the Army after completing 17 years, 4 months and 10 days of prior active service.

On 7 October 1955, he was convicted by a special court-martial for discharging a .45 caliber pistol in the barracks on 28 August 1955.  His sentence was a forfeiture of $50.

On 17 May 1963, he accepted nonjudicial punishment (NJP) under Article 15, UCMJ for theft of a US Postal Money Order in the amount of $100 from a fellow soldier.  His punishment included a reduction to pay grade E-4 and ½ month pay for 2 months. 

On 29 April 1964, he accepted NJP under Article 15, UCMJ for being AWOL from 13 to 20 January 1964.  His punishment included a reduction to pay grade E-3 (suspended) and restriction.

On 6 April 1965, he accepted NJP under Article 15, UCMJ for being absent without reveille.  His punishment included a reduction to pay grade E-3 (suspended) and restriction.

On 12 April 1976, the Army Times published the “recommended” list for promotion to master sergeant on which the applicant’s name appeared. 

On 1 November 1976, the applicant’s records were flagged based on an investigation of his violation of Article 134, UCMJ.  He was advised of the reasons.

On 3 January 1977, his battalion commander issued a Letter of Reprimand for having sex with his daughters, under the age of 16.  The commander indicated that on this date, the General Court-Martial Convening Authority withdrew charges because witnesses declined to return to Germany for trial.  He was advised that he had admitted, under oath, to the commander and Criminal Investigative Division agents, that “he had engaged in a form of sexual activities with his daughters.”

On 6 January 1978, the battalion commander recommended the removal of the applicant from the promotion list based on his prior indisciplines.  The Office of the Deputy Chief of Staff for Personnel approved the request.

On 23 February 1978, he voluntarily requested retirement as an exception to policy effective 31 March 1978, based on the removal of a flagging action.

On 31 March 1978, he was honorably separated, in pay grade E-7, under Army Regulation 635-200, chapter 12, based on having sufficient service for retirement.  On 1 April 1978, he was transferred to the retired list.  His separation document indicates he had 20 years, 3 months and 14 days of creditable service and 7 days of lost time.

On 27 June 1978, the Department of the Army Standby Enlisted Advisory Board, which adjourned on 3 November 1977, denied his request for promotion reconsideration. 

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 March 1978, the date of his separation.  The time for the applicant to file a request for correction of any error or injustice expired on 31 March 1981.

The application is dated 20 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.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

_jea____  _svw____  _gp_____   CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001051549	
SUFFIX		
RECON		
DATE BOARDED	20010410	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131	
2.		
3.		
4.		
5.		
6.