MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:                 

	BOARD DATE:                      24 September 2002    
	DOCKET NUMBER:             AR2002068202

	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. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Donald P. Hupman		Member	
	Mr. Kenneth W. Lapin		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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 essence, that he receive credit for being on active duty when he was being held over in basic training for 12 weeks.  He helped train other recruits while awaiting the start of his second advanced individual training (AIT) course.  He provides no date of discovery of the alleged error or injustice, but believes the Board should excuse his failure to timely file, so that he can qualify for Veterans Administration benefits.  He believes he qualified 
by working in the Army on active duty for more than 1 day, prior to the 
beginning of his second AIT course.  The applicant provides a copy of his 
DD Form 214 (Certificate of Release or Discharge From Active Duty) dated 
13 June 1980, a copy of his NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) dated 25 September 1991, a copy of his IADT [Initial Active Duty for Training] orders dated 5 December 1979, a copy of his DA Form 20 Enlisted Qualification Record) Item 35 (Current and Previous Assignments) and of his Army National Guard Current Annual Statement prepared on 8 June 1990.  

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 in U.S. Army Reserve (USAR), on 26 March 1979.  He was ordered to active duty for training on 18 June 1979.  He completed basic training at 
Fort Jackson, South Carolina and AIT in military occupational specialty (MOS) 69D00 (Imagery Interpreter).  On 9 January 1980, he was then reassigned to Fort Gordon, Georgia for training in a second AIT and was awarded MOS 
35L10 (Avionic Communications Equipment Repairer).  

On 13 June 1980, he was issued a DD Form 214 and released “from IADT under the Reserve enlistment program upon completion of his MOS training and a minimum of 12 weeks IADT.”  His DD Form 214 shows that he had 11 months and 26 days of active duty service.  The highest pay grade he attained was E-2.

His records show he continued service in the Georgia Army National Guard (GAARNG) and was issued an NGB (National Guard Bureau Report of Separation and Record of Service) Form 22 on 25 September 1991.  His NGB Form 22 shows that he had 12 years, 5 months and 29 days of service and attained the rank of Sergeant, pay grade E-5.

Title 10, U.S. Code, section 101(d) defines “active duty” as full-time duty in the active military service of the United States.

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 in 13 June 1980, the date he was discharged 
from Inactive Duty for Training and signed his DD Form 214.  The time for the applicant to file a request for correction of any error or injustice was 13 June 1983.

The application is dated 11 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 recommended 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

__AAO__  ___DPH _  __KWL  _  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR20020768202	
SUFFIX		
RECON		
DATE BOARDED	2002.09.24	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	A 115.0300	
2.		
3.		
4.		
5.		
6.