MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:          11 September 2001                     
	DOCKET NUMBER: AR2001058007

	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. Celia L. Adolphi		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Donald P. Hupman, Jr.		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 show he served the equivalent of a 2-year enlistment for pension purposes.  He indicates that he served on initial active duty for training and was then ordered to active duty for missing meetings.  He provides copies of his DD Forms 214 (Report of Separation from Active Duty) dated 21 February 1975 and 13 December 1976.  

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 9 November 1973, he enlisted in the Florida Army National Guard (FLARNG) for 6 years.

On 7 February 1974, he was ordered to initial active duty for training.  He completed his required training and was awarded military occupational specialty 26L (Tactical Microwave Systems Repairer).  On 21 February 1975, he was honorably released from active duty to the FLARNG.  His DD Form 214 indicates he had 1 year and 15 days of net active service this period, and 2 months and   28 days of prior inactive service.

On 12 February 1976, he was ordered to active duty for a period of 10 months and 20 days because of his failure to attend unit meetings.

During the period 10 March to 22 December 1976, he served in a unit in Germany.  He was promoted to pay grade E-4 effective 9 August 1976.

On 13 December 1976, he was honorably released from active duty to the FLARNG.  His DD Form 214 indicates he had 10 months and 2 days of net active service this period for a total of 1 year, 10 months and 17 days of active duty.  It also indicates that he accepted a direct USAR assignment to the 489th Transportation Company (USAR), Jacksonville, Florida.

On 9 March 1977, he was transferred to the USAR Control Group (Reinforcement).

On 8 November 1979, he was honorably discharged from the USAR.

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 1976, the date he was released from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 13 December 1979.

The application is dated 14 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 the case had been considered and it had been concluded that there was no basis to recommend 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 the application within the three-year time limit.  

BOARD VOTE:

________  ________  ________ EXCUSE FAILURE TO TIMELY FILE

________  ________  ________ GRANT FORMAL HEARING

_dph____  _cla____  _clg____    CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001058007 	
SUFFIX		
RECON		
DATE BOARDED	20010911	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	100	
2.		
3.		
4.		
5.		
6.		

BOARD VOTE:

________  ________  ________ EXCUSE FAILURE TO TIMELY FILE

________  ________  ________ GRANT FORMAL HEARING

________  ________  ________ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
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.		
2.		
3.		
4.		
5.		
6.