MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           21 FEBRUARY 2002
	DOCKET NUMBER:   AR2002066751

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Melvin H. Meyer		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 that his MOS (military occupational specialty) was “Reaction Force.”  He states that his MOS was changed at Fort Rucker, Alabama, and he needs his records corrected “for VA Claims purposes.”  In support of his request he submits a copy of his DD Form 214, a copy of orders promoting him to pay grade E-4, a copy of an order reassigning him to Fort Dix, New Jersey for transition purposes, and a copy of an order reassigning another soldier to Fort Leonard Wood, Missouri.  Also attached to his application was a self-authored statement to the VA in which the applicant appears to discuss traumatic events he encountered while in Vietnam and the affects of those events on his inability to sleep without nightmares.

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 were not available to the Board.  Information contained herein was reconstructed from documents provided by the applicant.

The applicant entered active duty on 28 November 1967 and, according to his separation report, served in Vietnam between April 1969 and September 1970.  

He was promoted to pay grade E-4 effective 19 March 1970.  His promotion order indicates that his previously held MOS of 63A10 was replaced by MOS 63C20 when he was promoted.  MOS 63A and 63C were part of the 63 career management field which included specialties associated with mechanical maintenance.  Today MOS 63A specifically identifies individuals performing duties as M1-Abrams Tank System Maintainers.  Specialty 63C, which identified individuals performing duties as track mechanics, is no longer in the Army’s inventory.

Orders reassigning the applicant to Fort Dix for separation processing, which he included with his application to the Board, indicate that he still held MOS 63C20 at the time of his reassignment.  On 6 September 1970 the applicant was released from active duty under an early separation program for overseas returnees.  His DD Form 214, which he authenticated, indicates his MOS was still 63C.

The other reassignment order, which the applicant submitted in support of his request, reassigned another soldier from Vietnam to Fort Leonard Wood in April 1970.  That soldier’s MOS on the reassignment order was reflected as 76K20.  MOS 76K was part of the supply and services career management field.

In the applicant’s self-authored statement to the VA, he indicated that he was having nightmares about the “things [he] went through in Vietnam.”  He stated that he was “usually” in the jungle and “was in a reaction force….”  He concludes the statement by saying, “what it comes down to is I was a grunt or as [they] use to say foot soldier.”

There is no evidence, and the applicant has not provided any, that he held any other MOS than that of 63A or 63C, which was in the field of mechanical maintenance.  While he may very well have performed duties as part of a “reaction force” (a military force which can respond quickly and effectively) while in Vietnam, there was no specific MOS designated for that duty.  

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 6 September 1970, the date the applicant was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 6 September 1973.

The application is dated 24 May 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 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 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

__GDP__  __TAP __  __MHM__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002066751	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020221	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	142.00	
2.		
3.		
4.		
5.		
6.