MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           07 MAY 2002
	DOCKET NUMBER:   AR2002068169

	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. Samue A. Crumpler		Chairperson	
	Mr. Kenneth W. Lapin		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 his separation date from active Federal service be corrected to show that he was released from active duty on 31 October 1965 vice 1 November 1966.  The applicant states, in effect, that he was drafted into the Army and that his record was subsequently changed to show that he was in the RA (Regular Army).  He states that they "kept" him in Germany for 18 months.  The applicant submits no evidence in support of his request.

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 was inducted into the AUS (Army of the United States) for a period of 2 years on 19 November 1964.  Copies of his original induction document, contained in his military personnel file, confirmed the induction action.  As a result of his induction his scheduled separation date (ETS) was established as 18 November 1966.

The applicant completed training as a medical specialist and in April 1965 was assigned to a medical unit in Germany.  The applicant remained in Germany until 29 October 1966 when he returned to the United States for the purpose of separation processing.  He was released from active duty on 1 November 1966, several days prior to his scheduled separation date, under a program which permitted the early separation of soldiers returning from overseas who had insufficient remaining service to be effectively utilized at a new unit of assignment.  The applicant had completed 1 year, 11 months and 13 days of his original 2 year contract.  Orders contained in the applicant's file confirmed his separation date.  There is no indication in available records that the applicant's service component was ever changed from AUS to RA.

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.

There is no evidence, and the applicant has not provided any, that his separation date should have been 31 October 1965 vice 1 November 1966.  Had the applicant been separated in October 1965, as he contends he should have been, he would have served less than 1 year of active Federal service.  The applicant's 1 November 1966 separation date is correct.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 1 November 1966, the date the applicant was released from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 1 November 1969.

The application is dated 22 January 2002 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

__SAC__  __KWL__  __JTM___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002068169	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020507	
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.