MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           29 January 2002                  
	DOCKET NUMBER:   AR2001062474

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian 		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Karen A. Heinz		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 he be promoted to E-8/MSG.  He states that an unfavorable Enlisted Efficiency Report (EER), dated 27 December 1968, prevented him from being promoted to E-8.  He also states that he did not have any unfavorable actions against his record and was given a favorable Letter of Appreciation (LOA) prior to completion of his EER.  He also received an excellent conduct and superior efficiency rating as stated on his Walter Reed Army Medical Center (WRAMC) Form 20 (Installation Clearance Record).  In support of his application, he submits a copy of his DA Form 20 (Enlisted Qualification Record), a copy of his DA Form 2166 (Enlisted Efficiency Report), a copy of 
a LOA, dated 31 August 1969, a copy of his DD Form 214 (Report of Transfer or Discharge), dated 31 August 1969, and a copy of his WRAMC Form 20.

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 he enlisted on 18 January 1941, and continued to serve through a series of continuous
reenlistments.

The applicant’s records contain a copy of WRAMC Special Orders 224, dated 3 October 1967, which shows that the applicant was promoted to the pay grade of E-7/SFC on 13 April 1967, and was awarded the primary military occupational specialty (PMOS) of 91H40.

The applicant provided a copy of his EER, dated 30 December 1968, which shows that the purpose of this evaluation was for his military occupational specialty (MOS) of 91H40.

The applicant has provided no evidence, and there is no evidence of record, to show that his EER prevented him from being promoted to E-8.  There also is no evidence, and the applicant has provided to evidence, to show that he was recommended for promotion by a commander in the grade of colonel or higher.

The applicant was retired for length of service on 31 August 1969, with 27 years, and 7 months of Active Federal Service and was placed on the Army of the United States Retired List on 1 September 1969, in the pay grade of E-7/SFC.

The applicant has provided no evidence, and there is no evidence of record, to show that he appealed his EER to the Department of the Army.

Army Regulation 600-200, in effect at that time, prescribed policy and procedures pertaining to the career management of Army enlisted personnel.  Chapter
7 governed promotions and reductions.  It stated, in pertinent part, that commanders of organizations may authorize a commander in the grade of colonel or higher to promote individuals in the pay grades of E7 through E-9.  For separate detachments, companies, or battalions, the promotion authority will be retained at the next senior headquarters within the chain of command which is authorized a commander in the grade of colonel or higher.

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 August 1969, the date of his retirement.  The time for the applicant to file a request for correction of any error or injustice expired on 31 August 1972.

The application is dated 17 July 2001, 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

_aao____  _mhm____  _kah____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001062474	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020129	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19690901	
DISCHARGE AUTHORITY	AR 635-200 chapter 12	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310		
2.		
3.		
4.		
5.		
6.