MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 March 2002                   
	DOCKET NUMBER:   AR2001062498

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. John T. Meixell		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 the records of his deceased father, a former service member (FSM), be amended to show he completed 90 days of active duty service and to show he had a disabling foot injury or disease.  He states that he is acting as the court-appointed conservator of the FSM’s widow and next of kin.  The Army made a mistake by inducting the FSM, who was married and had two dependent children, at the advanced age of 31.  His foot injury, which was incurred while in the service, was erroneously omitted from his discharge document.  This has wrongfully prevented the FSM’s widow from obtaining Department of Veterans Affairs (VA) benefits.  He provides the FSM’s Honorable Discharge Certificate, Enlisted Record, death certificate, and the court order appointing the applicant as the widow’s conservator papers as supporting evidence.

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 FSM's military records were lost or destroyed in the National Personnel Records Center fire in 1973.  The information contained herein was obtained from alternate sources.

The FSM was born on 11 March 1911.  The Selective Service System (SSS) Classification Record shows that he was sent his SSS questionnaire on 4 December 1940.  He returned it on 10 December 1940.  It appears he was initially classified    1-A (available for military service), then changed to I-B (available for limited military service).  Classification I-H (deferred, age 28 or over) was established 31 August 1941 and it appears that at this time his classification was changed to I-H.  Classification I-H was discontinued effective 19 November 1942.  It appears that in anticipation of this discontinuance, the FSM was sent a notice on 18 September 1942 to appear for a physical examination and that he appeared for the physical examination on 22 September 1942.  He was mailed his classification (apparently to I-H) on 30 September 1942.  There is no evidence of record to show he appealed his classification.  

The FSM was inducted into the Army on 13 November 1942.  He was discharged on 1 February 1943 under the provisions of Army Regulation 615-360.  His Enlisted Record indicates his physical condition when discharged was “good.”   The SSS Classification Record indicates he was discharged due to physical disability.

The FSM died on 19 October 1993.

Army Regulation 615-360, in effect at the time, prescribed policies and procedures for the discharge and release from active duty of enlisted men for a number of reasons, to include disability.  
Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed on or before 26 October 1961 or 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 1 February 1943, the date the FSM was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 26 October 1961.

The application is dated 1 September 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.  Prior to reaching this determination the Board looked at the FSM’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 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 his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__jns___  __lds___  __jtm___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001062498	
SUFFIX		
RECON		
DATE BOARDED	20020321	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.