MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           21 MAY 2002
	DOCKET NUMBER:   AR2002068661

	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	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Thomas Lanyi		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:  Award of the National Defense Service Medal, correction of his Honorable Discharge Certificate and orders discharging him to show his rank as Private First Class (PFC) in lieu of Private (PV1), and award of an MOS (Military Occupational Specialty) 300F10.

He states that he entered on active duty as a PFC and was never demoted.  He was in the Army Reserve (Individual Ready Reserve) and was eligible for award of the National Defense Service Medal.  MOS 300F10 is the same as MOS 91A. The reason that it is an MOS, is because of its suffix of “10.“  

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:

The applicant enlisted in the Army for four years on 14 June 1988 in the rank of PFC, pay grade E-3.  His enlistment documents show that he enlisted for school training in MOS 39C10, Target Acquisition/Surveillance Radar Repairer.

The applicant completed basic training and in August 1988 was assigned to Fort Sill, Oklahoma for training in MOS 39C00.  

On 31 January 1989, the applicant was relieved from the 39C class because he failed an examination on three occasions.  The applicant’s commanding officer recommended that the applicant be reclassified into another MOS, rather than be discharged.  The applicant was informed that a second-time MOS training failure would result in his discharge from the service.

In February 1989 the applicant was assigned to Fort Sam Houston, Texas, for training in MOS 91A.

The applicant completed a four week General Medical Orientation Course      300-F10 at Fort Sam Houston on 17 March 1989.

On 23 June 1989 the applicant was counseled because he failed the Army Physical Fitness Test (APFT) on three occasions. 

On 13 July 1989 the applicant was notified that the informal faculty board hearing recommending that he be relieved from the 302-91F10 course, class 3-89, and that he be discharged from the Army, was approved. 

On 21 July 1989 the applicant was counseled because he missed bed check on three occasions, and did not appear for a morning formation.

On 25 July 1989 the applicant was counseled because he had failed the Army Physical Fitness Test (APFT) on seven occasions.

On 28 July 1989 the applicant received nonjudicial punishment under Article 15, UCMJ, for disobeying a lawful order.     

A 31 July 1989 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1.  In the report of medical history that he furnished for the examination, the applicant stated that he was in good health. 

A report of mental status evaluation shows that the applicant was mentally responsible, had the mental capacity to understand and participate in proceedings, and met the medical standards for retention in the Army.
 
On 25 August 1989 the applicant’s commanding officer notified the applicant that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200, chapter 13, because he lacked the potential to become a productive and effective soldier.  He stated that he was recommending that the applicant receive an Honorable Discharge Certificate.

The applicant stated that he had been afforded the opportunity to consult with counsel, that he understood the basis for the contemplated action to separate him, its effects, the rights available to him, and the effect of any action taken by him in waiving his rights.  He declined to submit statements in his own behalf.  

The applicant’s commanding officer recommended to the separation authority that the applicant be discharged from the Army.  He stated that the applicant was a double MOS failure and had failed to pass the APFT.

On 29 August 1989 the separation authority approved the recommendation, stated that the applicant would be issued an Honorable Discharge Certificate, and that he would be transferred to the Individual Ready Reserve (IRR).

The applicant was released from active duty on 12 September 1989 and transferred to the Army Reserve Control Group (Annual Training) at St. Louis, Missouri.  He had 1 year, 2 months, and 29 days of service.

In response to his request pertaining to awards, the Army Reserve Personnel Center, on 2 September 1993, forwarded a correction to his DD Form 214, which shows award of the Army Good Conduct Medal, the Army Service Ribbon, and the Marksman Qualification Badge with hand grenade bar.  That agency also informed him that he was not entitled to award of any MOS, in that the General Medical Orientation Course [that he completed] did not equate to any MOS.  He was further informed that he was not entitled to award of the National Defense Service Medal.  

The applicant was discharged from the Army Reserve on 18 June 1996 upon completion of his statutory military obligation.  His discharge certificate shows his rank as PV1.  Orders effecting that discharge show his rank as PV1.

Subsequent to his release from active duty on 12 September 1989 there is no evidence concerning the applicant’s Reserve status.  Consequently, administrative regularity concerning his discharge is presumed. 

Army Regulation 611-201 provides a list of all the MOS in the Army, to include those in career management field (CMF) 91 – Medical.  There is no such MOS listed as 300F10.  It appears from the applicant’s diploma, that 300-F10 is a course number, not an MOS.  

The National Defense Service Medal is awarded for honorable active service for any period from 2 August 1990 to 30 November 1995.  It is awarded to all members of the Army National Guard and Army Reserve who were part of the selected Reserve in good standing during the period 2 August 1990 to               30 November 1995.

Army Regulation 140-10 prescribes policies for the assignment, removal, and transfer of Army Reserve soldiers.  It states that the selected Reserve consists of soldiers assigned to troop program units (TPUs), Control Group (Individual Mobilization Augmentation), and Control Group (Active Guard Reserve).  The Ready Reserve consists of soldiers assigned to the Control Group (Annual Training), Control Group (Reinforcement), Control Group (Officer Active Duty Obligor), and Control Group (Dual Component).  Soldiers assigned to the Control Group (Annual Training) have a mandatory training requirement and are subject to mandatory assignment to a Reserve TPU within reasonable commuting distance.

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, nor has the applicant provided any, to indicate that his discharge grade was in error or unjust, that he should be awarded an MOS of 300F10, or that he is entitled to award of the National Defense Service Medal,  and as such there is no basis to correct his record to grant his request.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 18 June 1996, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 18 June 1999.

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

__JLP  __  __BJE    _  __TL____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002068661	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020521	
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.	100.00	
3.	110.00	
4.	107.00	
5.	1021	
6.