MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           15 AUGUST 2002
	DOCKET NUMBER:   AR2002068581

	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. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Jose A. Martinez		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 reflect award of the Army Commendation Medal.  He states, in effect, that he believes he was awarded an Army Commendation Medal as evidenced by information contained in a letter of recommendation authored in 1994 by his supervisor.  He also notes that the supervisor "verbally told" him he was being recommended for the award for rewriting the "documentation guidelines" for his "floor" at WBAMC (William Beaumont Army Medical Center).  In support of his request he submits a copy of the 1994 letter of recommendation, which was authored by his supervisor.

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 entered active duty on 21 September 1990, in pay grade E-4, and was assigned to WBAMC in April 1991 following completion of training as a psychiatric specialist.  The applicant remained assigned to WBAMC for the duration of his enlistment.

The applicant was voluntarily released from active duty on 30 April 1994 as part of the Army voluntary early separation program.  His separation document, which he authenticated, does not reflect entitlement to an Army Commendation Medal.  It does, however, reflect entitlement to an "expert" weapons qualification badge, the National Defense Service Medal and an Army Good Conduct Medal.

In the letter of recommendation, submitted by the applicant in support of his request, his supervisor recommended the applicant's "application be favorable considered."  The supervisor, who addressed the recommendation as "memorandum for individual concerned," was apparently providing a letter of recommendation to the applicant for a potential employer.  The letter, which was dated 26 April 1994, indicated the applicant was a "talented, motivated and conscientious soldier" and that "in addition to the National Service Ribbon, a good conduct medal, and a Army Commendation medal [sic]," the applicant had also obtained a perfect score with the hand grenade, rifle and a letter of commendation.

The applicant's records, however, do not reflect either a recommendation for, or an approved award of, the Army Commendation Medal.  His records do, however, confirm award of National Defense Service Medal and Army Good Conduct Medal.

Army Regulation 600-8-22 states that the Army Commendation Medal is awarded to members of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes herself or herself by heroism, meritorious achievement, or meritorious service.  As with all personal decoration, a recommendation, approval by the chain of command, and confirmation in orders is required.  During peacetime, the lowest level for approval of the Army Commendation Medal rest with commanders serving in pay grade O-6.

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.

Although the applicant's supervisor may have indicated in his letter of recommendation that the applicant had been awarded the Army Commendation Medal, there is no evidence in available records, or provided by the applicant, which confirms that information.  Even if the applicant had been recommended for the decoration, approval by a commander in pay grade O-6 would have been required, and there is no evidence such an action occurred.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 30 April 1994, 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 30 April 1997.

The application is dated 12 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

__JNS __  __INW __  ___JAM__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002068581	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020815	
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.	107.00	
2.		
3.		
4.		
5.		
6.